THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

DAVIS 


STUDIES 


IN 


HISTORY  AND  JURISPRUDENCE 


STUDIES 

IN   HISTORY   AND 
JURISPRUDENCE 


BY 

JAMES    BRYCE,  D.C.L. 

AUTHOR 

"TIIK  HOLY  ROMAN  EMPIRE,"  "THE  AMERICAN  COMMONWEALTH,"  ETC. 

FORMERLY  REGIUS  PROFESSOR  OF  CIVIL  LAW  IN  THE  UNIVERSITY 

OF  OXFORD;  HONORARY  FELLOW  OF  ORIEL  AND  TRINITY 

COLLEGES,   CORRESPONDING    MEMBER   OF  THE 

INSTITUTE  OF  FRANCE 


OXFORD    UNIVERSITY    PRESS 

AMERICAN    BRANCH 

NEW  YORK  :    91   AND  93  FIFTH  AVENUE 

LONDON :    HENRY    FROWDE 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 


Copyright,  IQOI,  by 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH 


Press  of  J.  J.  Little  &  Co. 
Astor  Place,  New  York 


THIS  VOLUME  WAS  TO  HAVE  BEEN  OFFERED 
TO  HENRY  SIDGWICK  (LATE  PROFESSOR  OF 
MORAL  PHILOSOPHY  IN  THE  UNIVERSITY  OF 
CAMBRIDGE)  WITH  WHOM  I  HAD  OFTEN  DISCUSSED 
THE  TOPICS  IT  DEALS  WITH,  AM)  IN  WHOM 
I  HAD  ADMIRED,  DURING  AN  INTIMATE  FRIEND- 
SHIP OF  NEARLY  FORTY  YEARS,  A  SUBTLE  AND 
FERTILE  MIND,  A  CHARACTER  OF  SINGULAR  PURITY 
AND  BEAUTY,  AND  AN  UNFAILING  LOVE  OF  TRUTH. 

IT   IS   NOW   DEDICATED   TO   HIS    MEMORY. 


PREFACE 

THIS  volume  contains  a  collection  of  Studies  com- 
posed at  different  times  over  a  long  series  of  years.  It 
treats  of  diverse  topics:  yet  through  many  of  them  there 
runs  a  common  thread,  that  of  a  comparison  between 
the  history  and  law  of  Rome  and  the  history  and  law 
of  England.  I  have  handled  this  comparison  from  se- 
veral points  of  view,  even  at  the  risk  of  some  little 
repetition,  applying  it  in  one  essay  to  the  growth  of  the 
Roman  and  British  Empires  (Essay  I),  in  another  to 
the  extension  over  the  world  of  their  respective  legal 
systems  (Essay  II),  in  another  to  their  Constitutions 
(Essay  III),  in  others  to  their  legislation  (Essays  XIV 
and  XV),  in  another  to  an  important  branch  of  their 
private  civil  law  (Essay  XVI).  The  topic  is  one  profit- 
able to  a  student  of  the  history  of  either  nation ;  and  it 
has  not  been  largely  treated  by  any  writers  known  to 
me;  as  indeed  few  of  our  best  known  historians  touch 
upon  the  legal  aspects  of  history. 

Two  Essays  (III  and  IV)  embody  an  effort  to  examine 
political  constitutions  generally  from  comparatively 
unfamiliar  points  of  view.  Five  (IX,  X,  XI,  XII  and 
XIII)  are  devoted  to  the  discussion,  in  a  non-technical 
way,  of  problems  in  jurisprudence  which  have  both  a 
theoretical  and  a  historical — to  some  extent  also  a  prac- 
tical— side.  Another  sketches  in  outline  the  early  his- 
tory of  Iceland,  and  the  very  peculiar  constitution  of 
the  primitive  Icelandic  Republic.  Three  others  relate 
to  modern  constitutions.  One  contains  reflections  on 
the  history  of  the  constitution  of  the  United  States,  a 
second  describes  the  systems  of  the  two  Dutch  Repub- 


viii  PREFACE 

lies  in  South  Africa,  and  a  third  analyses  and  comments 
on  the  constitution  recently  created  for  the  new  Com- 
monwealth of  Australia. 

My  aim  throughout  the  book  has  been  to  bring  out 
the  importance,  sometimes  overlooked,  of  the  constitu- 
tional and  legal  element  in  history,  and  to  present  topics 
which,  because  somewhat  technical,  often  repel  people 
by  their  apparent  dryness,  in  a  way  which  shall  make 
them  at  least  intelligible — since  they  can  hardly  be  made 
seductive — to  a  reader  who  does  not  add  to  a  fair  gene- 
ral knowledge  of  history  any  special  knowledge  of  law. 
Technicalities  cannot  be  wholly  avoided;  but  I  hope 
to  have  indulged  in  none  that  were  not  absolutely 
necessary. 

The  longer  one  lives  the  more  is  one  impressed  by 
the  close  connexion  between  the  old  Greco-Italian 
world  and  our  own.  We  are  still  very  near  the  ancients; 
and  have  still  much  to  learn  from  their  writings  and 
their  institutions.  The  current  of  study  and  education 
is  at  present  setting  so  strongly  towards  the  sciences 
of  nature  that  it  becomes  all  the  more  needful  for  those 
who  value  historical  inquiry  and  the  literature  of  the 
past  to  do  what  they  can  to  bring  that  old  world  into 
a  definite  and  tangible  relation  with  the  modern  time, 
a  relation  which  shall  be  not  only  stimulative  but  also 
practically  helpful. 

None  of  these  Studies  have  previously  appeared  in 
print  except  two,  viz.  those  relating  to  the  United  States 
and  to  the  two  Dutch  Republics;  and  both  of  these  have 
been  enlarged  and  revised.  My  thanks  are  due  to  my 
friend  Professor  Herbert  B.  Adams  of  Johns  Hopkins 
University,  Baltimore,  and  to  the  proprietors  of  the 
Forum  magazine  respectively  for  permission  to  repub- 
lish  these  two. 

Some  Studies  were  (in  substance)  delivered  as  Public 
Lectures  at  Oxford,  during  the  years  1870-1893  (when 
I  held  the  Regius  Professorship  of  Civil  Law  there), 
pursuant  to  the  custom  which  exists  in  that  University 


PREFACE  ii 

for  a  professor  to  deliver  from  time  to  time  discourses 
dealing  with  the  wider  and  less  technical  aspects  of  his 
subject.  All  these  have,  however,  been  rewritten  for 
publication;  and  whoever  has  had  a  similar  experience 
will  know  how  much  more  time  and  trouble  it  takes  to 
rewrite  a  discourse  than  to  compose  one  dc  iwro.  Two 
Lectures,  delivered  one  when  I  entered  on  and  the  other 
when  I  resigned  the  professorship,  have  been  appended, 
in  the  belief  that  they  may  have  some  interest  for  mem- 
bers of  the  University  and  for  those  who  watch  with 
sympathy  the  development  of  legal  teaching  in  England. 

I  have  endeavoured  to  bring  up  to  date  all  references 
to  recent  events,  so  that  when  such  events  are  mentioned 
the  book  may  be  taken  to  speak  as  from  1900  or  1901. 

As  it  is  now  nine  years  since  I  was  obliged  (when  I 
entered  Mr.  Gladstone's  Ministry  in  1892)  to  intermit 
any  minute  study  either  of  Roman  or  of  English  law, 
it  is  probable  that  the  book  may  disclose  an  imperfect 
knowledge  of  facts  and  views  given  to  the  world  during 
those  nine  years.  Under  these  conditions  I  might  have 
wished  to  keep  the  book  longer  before  publishing  it. 
But  life  is  short.  Some  of  the  friends  to  whose  com- 
ments and  criticisms  I  had  most  looked  forward  while 
composing  these  Studies  have  already  passed  away.  So 
it  seemed  better  to  let  what  I  have  written,  under  the 
constant  pressure  of  other  duties,  go  forth  now. 

Among  the  friends  whom  I  have  to  thank  for  informa- 
tion or  suggestions  are  Professors  A.  V.  Dicey,  Sir  F. 
Pollock,  Henry  Goudy,  and  Henry  Pelham  of  Oxford, 
Sir  Courtenay  Ilbert  (Parliamentary  Counsel  to  the 
Treasury),  Dr.  C.  L.  Shadwell  and  Mr.  Edward  Jenks 
of  Oxford,  Dr.  F.  Sigel  of  Warsaw,  and  Mr.  Jon 
Stefansson  of  Iceland. 

The  Index  has  been  prepared  by  Mr.  J.  S.  Cotton, 
to  whom  I  am  indebted  for  the  care  he  has  bestowed 
upon  it. 

June  27,  1901. 


CONTENTS 

ESSAY    I 

PAG* 

THE    ROMAN    EMPIRE    AND    THE    BRITISH    EMPIRE    IN 

INDIA 1-71 

Conquest  or  Absorption  by  modern  European  nations  of  the 

less  advanced  races         .......  I 

Creation  by  this  process  of  a  sort  of  unity  of  mankind           .  2 

Earlier  effort  of  Rome  to  unify  mankind        ....  3 

Part  borne  by  England  in  the  work  of  ruling  and  civilizing 

new  territories          ........  3 

The  Colonies  of  England  :  the  British  Empire  in  India        .  4 
Position  of  Rome  and  England  respectively  in  their  Empires  7 
Origin  of  the  British  Indian  compared  with  that  ol  the  Ro- 
man Empire 7 

Conditions  favouring  Roman  and  British  Indian  conquest    .  9 
Military  character  of  Roman  and  British  rule        .         .         .11 
What  the  Roman  and  the  English  conquerors  have  owed  to 

natural  frontiers       .         .         .         .         .         .         .         .12 

Strength  of  the  Roman  and  British  armies    .         .         .         .15 

Efforts  to  find  a  scientific  frontier 16 

The  Romans  and  English  as  Road  and  Railway  Builders    .  18 

Success  of  both  in  maintaining  internal  order  and  security    .  19 

Character  of  Roman  and  British  administration    ...  22 
Despotic  system  :  measure  of  self-government   left  to  the 

subjects 25 

Variations  in  provincial  administration  in  Roman  Empire 

and  India 29 

Revenue  and  taxation  of  the  two  Empires     ....  31 

Employment  of  native  subjects  in  civil  and  military  posts     .  35 

Civil  rights  of  conquerors  and  of  subjects      ....  38 
Respect  shown  to  native  religions  and  customs  :  contrast  of 

religious  feeling  in  ancient  and  in  modern  world  .         .  42 


xii  CONTENTS 

PAGE 

Character  of  the  conquerors  as  a  source  of  their  strength  .  48 
Contrasts  between  the  two  Empires  :  geographical  position 

of  the  ruling  race 51 

Fusion  of  Romans  and  provincials  :  no  similar  fusion  of 

English  and  Indians 52 

Influence  of  Climate,  of  Colour,  of  Religion  ....  53 

Languages  and  literature  in  Roman  Empire  and  in  India  .  59 
Influences  which  favoured  fusion  in  Roman  Empire  absent 

from  India        .........  62 

Retroactive  influences  of  the  provinces  on  Rome  and  of 

India  on  Britain 64 

What  the  experience  of  the  English  in  India  has  proved  .  67 

Causes  which  overthrew  the  Roman  Empire  ...  68 

Probable  future  of  British  power  in  India  ....  69 

ESSAY    II 

THE  EXTENSION  OF  ROMAN  AND  ENGLISH  LAW  THROUGH- 
OUT THE  WORLD  .        .        .        .  .        .       72-123 

Geographical  areas  now  covered  by  Roman  and  by  English 

Law 72 

Extension  of  Roman  Law  by  conquest           ....  75 

Methods  of  Legal  Administration  in  the  provinces                 .  77 

Gradual  assimilation  of  Roman  and  Provincial  Law     .         .  83 

Establishment  of  one  law  for  the  Roman  Empire          .         .  84 

How  the  Romans  were  able  to  create  an  imperial  law         .  88 

Spread  of  Roman  Law  after  the  fall  of  the  Western  Empire  89 

Diffusion  of  English  Law  over  regions  settled  or  conquered  .  94 

Legal  systems  which  the  English  found  in  India  ...  97 

Policy  followed  by  the  English  in  dealing  with  Indian  Law  .  100 

Codification  in  India 103 

Reciprocal  action  of  English  and  Native  Law  on  one  another  106 

Merits  and  working  of  the  Anglo-Indian  Codes  .  .  .  108 
Roman  Law  in  the  Empire  compared  with  English  Law  in 

India 114 

Probable  future  of  English  Law  in  India 118 

English  and  Roman  Law  over  the  world       ....  121 

"    ESSAY    III 

FLEXIBLE  AND  RIGID  CONSTITUTIONS        .        .        .     124-215 

Observations  on  the  Constitutions  of  Rome  and  England      .  124 


CONTENTS  xiii 

PAGE 

Old  Classification  of  Constitutions  as  Written  and  Un- 
written ..........  126 

Proposed  new  classification 128 

Flexible  Constitutions  :   how  far  distinguishable   from  laws 

in  general         .         .         .         .         .         .         .         .         .132 

Origin  of  Flexible  Constitutions     ......  136 

Strength  and  weakness  of  Flexible  Constitutions  .         .         .  139 

Such  Constitutions  are  rather  elastic  than  unstable      .         .  143 

Illustrations  from  the  Constitutions  of  Rome  and  England    .  144 

Dangers  possibly  inherent  in  Flexible  Constitutions      .         .  149 

Flexible  Constitutions  suited  to  aristocratic  governments     .  152 

Checks  applied  in  Rome  and  in  England        .         .         .  155 

Influence  of  Constitutions  on  the  mind  of  a  nation        .         .  158 
Illustrations  from  Rome  and  England           .         .         .         .161 

Capacity  of  Constitutions  for  Territorial  Expansion      .         .  164 

Enumeration  of  existing  Rigid  Constitutions         .         .         .  167 

Circumstances  under  which  Rigid  Constitutions  arise  .         .  170 

Enactment  and  amendment  of  Rigid  Constitutions       .         .  174 

Various  modes  now  in  use  for  amending  them      .         .         .  178 

How  far  can  Rigid  Constitutions  be  definite  or  complete  ?    .  184 

Stability  of  Rigid  Constitutions 187 

The  interpretation  of  Rigid  Constitutions      ....  193 

Contrast   of  Anglo-American  doctrines  with  those  of  the 

European  Continent         .......  195 

American  views  as  to  Interpretation      .....  196 

Suitability  of  Rigid  Constitutions  to  Democracies          .         .  198 

Recent  changes  of  opinion  in  the  United  States  and  England  202 

Probable  future  of  the  two  types  of  Constitution            .         .  205 

Proposals  for  federalizing  the  British  Constitution        .         .  207 

Possible  creation  of  new  States  and  Constitutions        .         .  210 

ESSAY   IV 

THE  ACTION  OF  CENTRIPETAL  AND  CENTRIFUGAL  FORCES 

ON  POLITICAL  CONSTITUTIONS  ....  216-262 

The  influence  of  aggregative  and  disjunctive  forces  on  po- 
litical societies 216 

Tendencies  which  may  act  either  Centripetally  or  Centrifu- 

gally 221 

Influences  of  Interest  and  Sympathy 222 

Illustrations  of  the  action  of  Racial  and  Religious  sentiment  224 


xiv  CONTEXTS 

PAGE 

In  the  progress  of  civilization,  material  interest  and  senti- 
ment may  be  opposed  .......  228 

How  Constitutions  may  use  the  existing  Centripetal  and 

Centrifugal  forces  ........  229 

Illustrations  from  Commerce,  Law  and  Religion  .         .         .  232 

Instances  of  the  troubles  caused  by  Racial  or  Religious  sen- 
timent    238 

Methods  by  which  Constitutions  may  disarm  or  regulate  the 

centrifugal  forces  :  illustrations  .....  242 

Difficulties  due  to  differences  of  colour  in  races    .         .         .  245 

How  the  Constitutions  of  the  United  States  and  Switzerland 

have  acted 250 

The  Centripetal  force  generally,  but  not  always,  dominant 

in  European  history  .  .  .  .  .  .  .254 

Effects  of  Conquest  and  of  Dynastic  Succession    .         .         .  256 

Probable  future  strength  of  the  centrifugal  and  centripetal 

forces  respectively 259 

Present  tendency  to  the  enlargement  or  consolidation  of 

States  is  not  necessarily  permanent  ....  261 

ESSAY   V 

PRIMITIVE  ICELAND 263-300 

Discovery  and  Settlement  of  Iceland     .....  263 

Beginnings  of  a  Polity  :  the  Thing 266 

Rise  of  the  Go8i  or  Priest-Chieftain       .....  268 
The  first  political  constitution  of  the  island  .         .         .        .271 

Judicial  organization  and  powers  of  the  Althing  .         .         .  274 

The  Speaker  of  the  Law 275 

Thingvellir  and  the  meetings  of  the  Althing        .         .        .  276 

General  character  of  the  Icelandic  Republic          .         .        .  280 

Growth  and  character  of  the  law  of  Iceland          .         .         .  282 

Complexity  of  the  constitution  and  the  law  ....  283 

Sources  of  our  knowledge  of  the  law 287 

Illustrations  of  features  of  the  early  law        .         .        .         .  288 

An  action  for  the  ejectment  of  ghosts 291 

The  Judicial  Duel :  Story  of  Gunnlaug  Snake's  Tongue  and 

Helga  the  Fair 292 

The  introduction  of  Christianity 294 

Reflections  on  the  early  history  of  Iceland    ....  296 

Fall  of  the  Republic  :  subsequent  fortunes  of  the  isle  .        .  299 


OOVTSNTS  xv 

ESSAY   VI 

PAGE 

THE  CONSTITUTION  OF  THE  UNITED  STATES  AS  SEEN  IN 

THE  PAST 301-358 

Value  of  contemporary  views  of  an  institution       .         .         .301 

The  Federalist :  Alex.  Hamilton  and  James  Madison          .  302 

The  United  States  in  A.D.  1788 303 

Predictions  of  the  opponents  of  the  New  Constitution  .         .  307 

Views  of  its  supporters  :  dangers  feared  by  them          .         .  309 

Examination  of  the  predictions  of  1788           ....  314 
Characteristic  merits  and  defects  of  American  Democracy 

only  slightly  foreseen 317 

The  Democracy  in  America  of  Alexis  de  Tocqueville           .  319 

Merits  and  flaws  in  Tocqueville's  study  of  the  United  States  320 

His  insufficient  knowledge  of  England           ....  323 

His  preoccupation  with  France     ......  324 

The  deficiencies  observable  in   his  book  scarcely  affect  its 

present  value 327 

Condition  of  the  United  States  in  Tocqueville's  day       .         .  328 

His  description  of  the  salient  features  of  the  nation       .         .  332 

Advantages  which  he  conceives  Democracy  to  have  secured  337 

Evils  he  discovers  in  American  Democracy           .         .         .  338 

Causes  which  in  his  view  maintain  Republican  government  340 

His  forecasts  :  the  negroes  :  weakness  of  the  Federal  Union  341 

Points  omitted  in  his  description  ......  345 

Chief  events  in  the  United  States  since  Tocqueville's  time  .  347 

Chief  political  changes  of  the  last  sixty-seven  years       .         .  348 

Examination  of  Tocqueville's  predictions      ....  349 

Summary  of  Tocqueville's  conclusions           ....  355 

General  course  of  events  in  America  since  1788    .         .         .  357 

What  Tocqueville  would  say  to-day 357 

ESSAY   VII 

Two  SOUTH  AFRICAN  CONSTITUTIONS      .       .        .     359-390 

Originality  of  the  Constitutions  of  the  two  Dutch  Republics  359 

Circumstances  under  which  they  arose          ....  361 

Constitution  of  the  Orange  Free  State 364 

Constitution  of  the  South  African  Republic  (Transvaal)       .  369 
Observations  on  the  Constitution  of  the  South  African  Re- 
public        374 


xvi  CONTENTS 

HACK 

Is  it  a  Rigid  or  a  Flexible  Constitution  ?                         .         .  375 

Controversy  as  to  the  so-called  '  testing  power  '    .         .         .  378 

The  Constitution  is  certainly  a  Flexible  one  .         .         .         .  379 

Observations  upon  both  these  Constitutions           .         .         .  380 
Comparison  of  these  Constitutions  with  that  of  Britain  and 

that  of  the  United  States 383 

Relations  of  Executive  and  Legislature  in  these  Dutch  Re- 
publics       385 

Practical  Working  of  the  Constitution  of  the  Orange  Free 

State 387 

Working  of  the  Constitution  of  the  South  African  Republic  388 

Postscript 389 

ESSAY   VIII 

THE  CONSTITUTION   OF  THE  COMMONWEALTH  OF    AU- 
STRALIA       391-462 

Interest  attaching  to  the  new  Constitution  of  Australia        .  391 
Origin  and  progress  of  the  movement  for  federalizing  Au- 
stralia         394 

Causes  which  induced  Federation 398 

Influence  of  a  Pan-Australian  sentiment       ....  401 

Physical  and  racial  conditions  favouring  Federation    .         .  403 
Comparison  with  the  conditions  of  the  United  States  and  of 

Canada    ..........  406 

Two  leading  types  of  Federal  Government  ....  408 

Distribution  of  powers   between  the  Nation  and  the  States 

in  the  Australian  Constitution 410 

Position  of  the  Australian  States  under  the  Constitution       .  413 
Differences  from  the  Federal  systems  of  the  United  States 

and  of  Canada         ........  416 

The  National  Government  :  few  restrictions  on  its  powers  .  419 

The  Legislature  :  Representation  of  the  States  in  the  Senate  '420 

The  House  of  Representatives 422 

The  Executive         .........  424 

The  Judiciary           .........  425 

Question  as  to  Constitutional  Appeals  :  the  British  Govern- 
ment yield  to  Australian  sentiment         ....  426 

Intended   working   of   the    scheme   of  Government :   The 

Cabinet   .....         .....  428 

provision  against  legislative  deadlocks          ....  431 


CONTEXTS  ivii 

PAGE 

Relations  of  the  Two  Houses 432 

Financial  provisions  :  railways  and  rivers     ....  436 

Location  of  the  national  capital  :  admission  of  New  States  .  436 

Mode  of  amending  the  Constitution       .....  437 
Relations  of  the  Australian  Commonwealth  to  the  British 

Crown 438 

General  comparison  of  the  Australian  Constitution  with  that 

of  the  United  States 440 

Comparison  with  that  of  the  Dominion  of  Canada        .         .  440 

Further  observations  on  the  Constitution       ....  443 
It  is  less  strictly  Federal  and  more  National  than  that  of  the 

United  States 445 

Its  highly  democratic  character 447 

It  contemplates  a  party  system      ....         .  450 
Difficulties  which  may  arise  from  the  existence  of  a  third 

party  .  .  .451 
What  political  issues  are  likely  to  arise  in  Australia  ?  .  452 
Probable  prominence  of  Economic  questions  .  .  .  455 
Possible  creation  and  admission  of  New  States  .  .  .  457 
Will  New  Zealand  enter  the  Federation  ?  458 
Tendencies  to  consolidation  may  be  strengthened  by  dis- 
putes with  foreign  powers 460 

Future  relations  of  Australia  to  Britain         ....  460 

ESSAY   IX 

OBEDIENCE 463-502 

Different  Theories  of  the  Nature  of  Political  Obedience        .  463 

The  grounds  of  compliance  in  general  :  Indolence       .         .  467 

Deference  and  Sympathy 469 

Reason  and  Fear 472 

Respective  strength  of  these  springs  of  Obedience  .  .  474 
Will  as  a  political  force  :  Illustrations  from  the  East  .  .  475 
Formation  of  the  habit  of  Obedience  in  the  individual  .  478 
Influences  forming  Obedience  in  early  societies  .  .  .  479 
Slight  interest  of  men  in  liberty  for  its  own  sake  .  .  .  482 
Is  the  tendency  to  obey  likely  to  decrease  ?  .  .  .  .  484 
Influences  apparently  making  for  subordination  .  .  .  485 
What  may  be  hoped  for  the  future  of  democratic  govern- 
ment    488 

How  a  pessimist  might  view  existing  conditions  .        .        .  489 


xviii  CONTENTS 

PAGE 

Conclusion  :  The  disposition  to  obey  will  be  permanent  .  496 
Note  on  the  application  to  the  definitions  of  Jurisprudence 

of  a  theory  of  Obedience 499 

ESSAY   X 

THE  NATURE  OF  SOVEREIGNTY 503-555 

Confusions  regarding  the  term  Sovereignty  ....  503 

Sovereignty  de  iure  and  de  facto  must  be  distinguished  .  505 
Sovereignty  de  iure  exists  in  the  sphere  of  law  only,  and  is 

not  concerned  with  obedience 509 

Sovereignty  de  facto  ;  concrete  instances  .  .  .  .511 
Relations  of  Sovereignty  de  iure  to  that  de  facto  .  .515 
Action  and  reaction  of  each  on  the  other  .  .  .  .519 
The  Roman  doctrine  of  Sovereignty  :  the  people  are  the 

source  of  political  power 527 

Mediaeval  views  of  Sovereignty  :  Emperor  and  Pope  .         .  529 

New  theories  of  the  sixteenth  and  seventeenth  centuries      .  531 

Bodin,  Althaus,  Hobbes 533 

Relation  of  Hobbes'  system  to  the  events  of  his  time     .         .  534 

Bentham  revives  Hobbes'  doctrine        .....  536 

Views  of  John  Austin  :  illustrations  of  their  unsoundness  .  537 
Confusion  of  various  questions  regarding  Sovereignty  which 

are  really  distinct .         .  541 

Rights  in  the  moral  sphere  of  Sovereignty  de  iure  and  Sove- 
reignty de  facto 544 

Sovereignty  in  International  Relations           ....  546 

Sovereignty  in  a  Federation 549 

Conclusion :    Theoretical    Controversies    regarding    Sove- 
reignty have  mostly  had  their  origin  in  current  politics  .  552 

ESSAY  XI 

THE  LAW  OF  NATURE 556-606 

Origin  of  the  notion  of  Nature  as  a  ruling  force    .         .         .  556 

It  is  different  from  modern  conception  of  the  Laws  of  Nature  560 

Nature  as  a  force  in  human  society 563 

The  term  '  Natural '  as  applied  to  Customs  and  Laws  .         .  564 

St.  Paul  and  the  Greek  philosophers  on  Natural  Law  .         .  566 

The  Roman  Law  of  the  Nations  {his  Gentiuni)  .         .         .  570 

How  the  'common  law  of  the  nations  '  was  formed       .         .  572 

Cicero  on  the  Law  of  the  Nations  and  Law  of  Nature  .         .  575 


COAT/;\TX  xix 

PACK 

Growth  of  the  idea  of  Natural  Law  among  the  jurists  .  578 

Practical  identification  of  lus  Gentium  and  Jus  Naturae  .  581 

Points  of  difference  which  remained :  Slavery  .  .  .  583 
Extension  of  Roman  citizenship  removes  the  need  for  a  lus 

Gentium          .........  585 

Senses  in  which  the  jurists  use  the  term  '  Nature  '  .  .  586 

Value  and  practical  influence  of  the  notion  of  Natural  Law  588 

The  Law  of  Nature  and  Law  of  God  in  the  Middle  Ages  .  593 

The  Law  of  Nature  in  Modern  Times  ....  597 

Its  relation  to  the  Law  of  England 599 

Its  influence  on  the  rise  of  International  Law  .  .  .  602 

1  Natural  Law  '  as  meaning  a  Philosophy  of  Law  .  .  604 
Conclusion  :  Comparative  quiescence  of  the  idea  in  recent 

times 604 

ESSAY    XII 

THE  METHODS  OF  LEGAL  SCIENCE  ....  607-637 
No  Philosophy  of  Law  among  the  Roman  Jurists  ;  is  such  a 

Philosophy  necessary  or  serviceable  ?     .         .                 .  607 

Four  Methods  employed  in  Legal  Science    ....  609 

The  Metaphysical  Method  :  German  Naturrecht         .        .  609 

The  Analytic  Method  :  the  Benthamites       ....  612 

Errors  in  John  Austin's  use  of  it 614 

The  Historical  Method 617 

The  Comparative  Method 619 

Value  of  these  four  Methods  respectively      ....  622 

How  they  may  best  be  applied  to  Legal  Study  .  .  .  624 
Did  the  Romans  suffer  from  having  no  general  Philosophy 

of  Law  ? 628 

Merits   observable  in  the  Roman  Jurists:   comparison    of 

their  treatises  with  those  of  English  lawyers          .         .  630 
Summary  :  The   Roman  Jurists  are  philosophical  in   spirit 

and  in  their  practical  handling  of  law    ....  636 

ESSAY    XIII 

THE  RELATIONS  OF  LAW  AND  RELIGION  .        .     638-668 

Apparent  Antagonism  of  Law  and  Religion  .  .  .  638 
Close  connexion  of  Law  and  Religion  in  early  states  of 

Society 640 

Differences  in  this  respect  between  different  peoples    .         .  643 


ix  CONTENTS 

PAGE 

The  Jews  in  Roman  times  :  primitive  Christianity       .         .  644 

Islam  ;  identification  of  Law  with  Religion            .         .         .  646 
Illustrations  from  a  Musulman  University  :  the  Mosque  El 

Azhar  at  Cairo         ........  646 

Description  of  El  Azhar  and  its  Teaching     ....  647 

Course  of  Instruction  :  Graduation:   Endowments       .         .651 
Resemblances  of  El  Azhar  to  the  European  Universities  of 

the  Middle  Ages 656 

Causes  of  the  arrested  development  of  Musulman  Univer- 
sities           658 

Nature  and  consequences  of  the  Musulman  identification  of 

Law  and  Religion   ........  658 

Identity  of  State  and  Church  under  Islam     ....  663 

How  Christianity  avoided  a  similar  identification         .         .  665 

ESSAY   XIV 

METHODS    OF    LAW-MAKING    IN    ROME    AND    IN    ENG- 
LAND            669-744 

Relations  of  the   History  of  Law  to  the  Constitutional   or 

Political  History  of  a  Country         .                  ...  669 

Law-making  Authorities  in  general 670 

Three  main   sources  of  Law  :  the  Ruling   Authority,  the 

Magistrate,  and  the  Legal  Profession     ....  674 

The  Jurists  as  makers  of  Law  in  earlier  times       .         .         .  676 

Changed  position  of  the  Jurists  under  the  Empire         .         .  677 

Differences  between  the  action  of  Roman  and  English  Jurists  681 

Roman  Treatises  compared  with  English  Reports       .         .  685 

Magistrates  and  Judges  :  in  what  sense  Law-makers  .         .  687 

The  Praetor  at  Rome 691 

Nature  and  Working  of  the  Praetor's  Edict          .         .         .  693 

The  English  Chancellor 695 

Praetorian  Edicts  compared  with  English  Case-Law   .         .  698 

Further  observations  on  Praetorian  methods         .         .        .  703 

Strong  and  weak  points  in  the  English  Case-System    .         .  705 

Direct  Legislation  at  Rome  :  its  Organs       ....  708 
The  Popular  Assembly  :  its  method  of  legislating        .         .711 

Merits  of  the  Roman  Statutes 713 

Legislation  by  the  Senate  :  its  characteristics       .        .        .  716 

Direct  legislation  by  the  Emperor 720 

Vast  powers  of  the  Emperor  :  his  Privy  Council  .        .         .  724 


CONTENTS  «i 

PACE 

Defects  in  Imperial  legislation 726 

Profusion  and  inferiority  of  legislation  under  the  later 

Emperors 728 

Direct  legislation  in  England  :  its  history  ....  731 

Advantages  of  Parliament  and  Congress  for  legislation  .  732 
Strictures  commonly  passed  on  English  and  American 

Statutes 734 

Difficulties  incident  to  Parliamentary  legislation  .  .  735 

Reflections  suggested  by  the  history  of  English  compared 

with  that  of  Roman  legislation 739 

Some  branches  of  law  better  fitted  than  others  to  be  handled 

by  direct  legislation 741 

ESSAY    XV 

THE  HISTORY  OF  LEGAL  DEVELOPMENT  AT  ROME  AND 

IN  ENGLAND 745-781 

Roman  and  English  Law  have  both  been  developed  in  a 

comparatively  independent  way 745 

Conspicuous  epochs  of  legal  change  at  Rome  and  in  England     747 
Forces  and  influences  chiefly  active  in  determining  legal 

changes  ..........     75° 

Roman  Legal  History  during  the  republican  period     .         .     751 
Effect  on  the  law  of  the  establishment  of  the  imperial  auto- 
cracy      ...  ...  .    755 

Rise  of  Christianity  :  dissolution  of  the  Empire  in  the  West  757 
The  decline  in  legal  learning  induced  Codification  .  .  758 
Political  events  and  External  Influences  are  the  chief  sources 

of  changes  in  Roman  Law 761 

Causes  of  legal  change  operative  in  England  :  the  periods 

of  Henry  II  and  Edward  I      ......     762 

The  Reformation  and  the  Civil  War 765 

The  Reform  Act  of  1832  and  the  Victorian  Epoch        .         .     767 
The  Law  of  Family  and  Inheritance  at  Rome  and  the  Law 

of  Land  in  England        .......     769 

Effects  of  Territorial  Expansion  on  Roman  and  on  English 

Law 771 

economic   influences  more  generally  potent  in  England  : 

political  in  Rome 773 

Observations  on  France  and  Germany         ....     776 


xxii  CONTENTS 

PAGE 

Private  law  is  the  branch  least  affected  by  political  changes     778 
Legal  topics  in  which  further  advances  may  be  looked  for     779 


ESSAY    XVI 

MARRIAGE   AND  DIVORCE  IN   ROMAN  AND   IN   ENGLISH 

LAW 782-859 

Diversity  of  the  Law  of  Marriage  in  different  countries  .  782 
Features  generally  characteristic  of  the  institution  in  the 

ancient  Mediterranean  World  .....  784 

Early  Marriage  law  of  the  Romans  .....  786 

Subordination  of  the  Wife  :  the  '  Hand  Power  '  (Manus)  .  787 

Transition  to  a  freer  system 789 

Later  Marriage  Law  :  nature  of  the  personal  relation  it 

creates 791 

Relation,  of  the  Consorts  as  respects  Property  .  .  .  794 
General  character  of  the  Roman  Conception  of  Marriage  : 

its  freedom      .........  798 

Roman  doctrine  and  practice  regarding  Divorce  .         .  799 

Influence  of  Christianity  on  Imperial  Legislation  .         .  803 

Other  Roman  rules  :  prohibited  degrees  :   Concubinatus    .  806 
Marriage  under  the  Canon  Law    .         .         .         .         .         .811 

The  English  Law  :  jurisdiction  of  the  Spiritual  Courts  .  814 
Relations  of  the  Consorts  as  respects  Property  under  Eng- 
lish Law 818 

Amendment  of  English  Matrimonial  Law  by  courts  of 

Equity  and  by  Legislation 821 

Personal  Liberty  of  the  Wife  now  well  established  .  .  823 
English  law  has  wavered  between  different  theories  of  the 

relation 824 

Divorce  under  the  Canon  Law 825 

History  of  Divorce  in  England 827 

Divorce  Laws  in  the  United  States 830 

Laxity  of  Procedure  in  Divorce  Cases 832 

Statistics  of  Divorce  in  the  United  States  :  causes  for  which 

it  is  granted 834 

Illustrations  from  the  '  Western  Reserve  '  counties  of  Ohio  836 

Divorce  in  modern  European  countries  ....  839 
Comparison  of  the  phenomena  of  Divorce  in  the  Roman  and 

in  the  Modern  World  842 


CONTENTS 

PAGE 

Causes   now   tending   to  weaken   the   permanence  of  the 

Marriage  Tie           .                  .                                    .         .  846 

Does  the  growth  of  Divorce  betoken  a  moral  decline  ?         ..  849 

Influence  of  the  Church  and  ot  the  Law        ....  851 

Does  the  English  Divorce  Law  need  amendment?       .         .  852 

Changes  in  Theory  and  in  Sentiment  regarding  Marriage   .  856 

INAUGURAL  LECTURE 860 

VALEDICTORY  LECTURE 887 

INDEX 909 


THE    ROMAN    EMPIRE    AND    THE 
BRITISH    EMPIRE    IN    INDIA 

IN  several  of  the  Essays  contained  in  these  volumes 
comparisons  are  instituted  between  Rome  and  Eng- 
land in  points  that  touch  the  constitutions  and  the 
laws  of  these  two  great  imperial  States.  This  Essay 
is  intended  to  compare  them  as  conquering  and  ruling 
powers,  acquiring  and  administering  dominions  outside 
the  original  dwelling-place  of  their  peoples,  and  impress- 
ing upon  these  dominions  their  own  type  of  civilization. 

This  comparison  derives  a  special  interest  from  a 
consideration  of  the  position  in  which  the  world  finds 
itself  at  the  beginning  of  the  twentieth  century.  The 
great  civilized  nations  have  spread  themselves  out  so 
widely,  and  that  with  increasing  rapidity  during  the 
last  fifty  years,  as  to  have  brought  under  their  dominion 
or  control  nearly  all  the  barbarous  or  semi-civilized 
races.  Europe — that  is  to  say  the  five  or  six  races 
which  we  call  the  European  branch  of  mankind — has 
annexed  the  rest  of  the  earth,  extinguishing  some  races, 
absorbing  others,  ruling  others  as  subjects,  and  spread- 
ing over  their  native  customs  and  beliefs  a  layer  of 
European  ideas  which  will  sink  deeper  and  deeper  till 
the  old  native  life  dies  out.  Thus,  while  the  face  of  the 
earth  is  being  changed  by  the  application  of  European 
science,  so  it  seems  likely  that  within  a  measurable  time 
European  forms  of  thought  and  ways  of  life  will  come 
to  prevail  everywhere,  except  possibly  in  China,  whose 


a  ROMAN  AND  BRITISH  EMPIRES 

vast  population  may  enable  her  to  resist  these  solvent 
influences  for  several  generations,  perhaps  for  several 
centuries.  In  this  process  whose  agencies  are  migration, 
conquest,  and  commerce,  England  has  led  the  way  and 
has  achieved  the  most.  Russia  however,  as  well  as 
France  and  Germany,  have  annexed  vast  areas  inhabited 
by  backward  races.  Even  the  United  States  has,  by 
occupying  the  Hawaiian  and  the  Philippine  Islands, 
entered,  somewhat  to  her  own  surprise,  on  the  same 
path.  Thus  a  new  sort  of  unity  is  being  created  among 
mankind.  This  unity  is  seen  in  the  bringing  of  every 
part  of  the  globe  into  close  relations,  both  commercial 
and  political,  with  every  other  part.  It  is  seen  in  the 
establishment  of  a  few  '  world  languages  '  as  vehicles 
of  communication  between  many  peoples,  vehicles  which 
carry  to  them  the  treasures  of  literature  and  science 
which  the  four  or  five  leading  nations  have  gathered.  It 
is  seen  in  the  diffusion  of  a  civilization  which  is  every- 
where the  same  in  its  material  aspects,  and  is  tolerably 
uniform  even  on  its  intellectual  side,  since  it  teaches  men 
to  think  on  similar  lines  and  to  apply  similar  methods 
of  scientific  inquiry.  The  process  has  been  going  on  for 
some  centuries.  In  our  own  day  it  advances  so  swiftly 
that  we  can  almost  foresee  the  time  when  it  will  be  com- 
plete. It  is  one  of  the  great  events  in  the  history  of  the 
world. 

Yet  it  is  not  altogether  a  new  thing.  A  similar  process 
went  on  in  the  ancient  world  from  the  time  of  Alexander 
the  Macedonian  to  that  of  Alaric  the  Visigoth.  The  Greek 
type  of  civilization,  and  to  some  extent  the  Greek  popu- 
lation also,  spread  out  over  the  regions  around  the  east- 
ern Mediterranean  and  the  Euxine.  Presently  the  con- 
quests of  Rome  brought  all  these  regions,  as  well  as  the 
western  countries  as  far  as  Caledonia,  under  one  govern- 
ment. This  produced  a  uniform  type  of  civilization 
which  was  Greek  on  the  side  of  thought,  of  literature, 
and  of  art,  Roman  on  the  side  of  law  and  institutions. 
Then  came  Christianity  which,  in  giving  to  all  these 


//OI/.IN      l\/>    HKITISII    /•;!//'//>'/>  3 

countries  one  religion  and  one  standard  of  morality, 
created  a  still  deeper  sense  of  unity  among  them.  Thus 
the  ancient  world,  omitting  the  barbarous  North  and  the 
semi-civilized  heathen  who  dwelt  beyond  the  Euphrates, 
became  unified,  the  backward  races  having  been  raised, 
at  least  in  the  upper  strata  of  their  population,  to  the 
level  of  the  more  advanced.  One  government,  one  faith, 
and  two  languages,  were  making  out  of  the  mass  of  races 
and  kingdoms  that  had  existed  before  the  Macedonian 
conquest,  a  single  people  who  were  at  once  a  Nation  and 
a  World  Nation. 

The  process  was  not  quite  complete  when  it  was  inter- 
rupted by  the  political  dissolution  of  the  Roman  do- 
minion, first  through  the  immigrations  of  the  Teutonic 
peoples  from  the  north,  then  by  the  terrible  strokes  dealt 
at  the  already  weakened  empire  by  the  Arab  conquerors 
from  the  south-east.  The  results  that  had  been  attained 
were  not  wholly  lost,  for  Europe  clung  to  the  Greco- 
Romano-Christian  civilization,  though  in  a  lowered  form 
and  with  a  diminished  sense  of  intellectual  as  well  as  of 
political  unity.  But  that  civilization  was  not  able  to  ex- 
tend itself  further,  save  by  slow  degrees  over  the  north 
and  towards  the  north-east.  Several  centuries  passed. 
Then,  at  first  faintly  from  the  twelfth  century  onwards, 
afterwards  more  swiftly  from  the  middle  of  the  fifteenth 
century,  when  the  intellectual  impulse  given  by  the  Re- 
naissance began  to  be  followed  by  the  rapid  march  of 
geographical  discovery  along  the  coasts  of  Africa,  in 
America,  and  in  the  further  east,  the  process  was  re- 
sumed. We  have  watched  its  later  stages  with  our  own 
eyes.  It  embraces  a  far  vaster  field  than  did  the  earlier 
one,  the  field  of  the  whole  earth.  As  we  watch  it,  we  are 
naturally  led  to  ask  what  light  the  earlier  effort  of  Nature 
to  gather  men  together  under  one  type  of  civilization 
throws  on  this  later  one.  As  Rome  was  the  principal 
agent  in  the  earlier,  so  has  England  been  in  the  later 
effort.  England  has  sent  her  language,  her  commerce, 
her  laws  and  institutions  forth  from  herself  over  an  even 


4  ROMAN  AND  BRITISH  EMPIRES 

wider  and  more  populous  area  than  that  whose  races 
were  moulded  into  new  forms  by  the  laws  and  institu- 
tions of  Rome.  The  conditions  are,  as  we  shall  see,  in 
many  respects  different.  Yet  there  is  in  the  parallel 
enough  to  make  it  instructive  for  the  present,  and  pos- 
sibly significant  for  the  future. 

The  dominions  of  England  beyond  the  seas  are,  how- 
ever, not  merely  too  locally  remote  from  one  another, 
but  also  too  diverse  in  their  character  to  be  compared 
as  one  whole  with  the  dominions  of  Rome,  which  were 
contiguous  in  space,  and  were  all  governed  on  the  same 
system.  The  Britannic  Empire  falls  into  three  terri- 
torial groups,  the  self-governing  colonies,  the  Crown 
colonies,  and  the  Indian  territories  ruled  by  or  depen- 
dent on  the  sovereign  of  Britain.  Of  these  three  groups, 
since  they  cannot  be  treated  together,  being  ruled  on 
altogether  different  principles,  it  is  one  group  only  that 
can  usefully  be  selected  for  comparison  with  the  Roman 
Empire.  India  contains  that  one  group.  She  is  fitter 
for  our  purpose  than  either  of  the  other  two  groups, 
because  the  self-governing  colonies  are  not  subject  ter- 
ritories administered  from  England,  but  new  Englands 
planted  far  away  beyond  the  oceans,  reproducing,  each 
in  its  own  way,  the  features  of  the  constitution  and 
government  of  the  old  country,  while  the  Crown  colonies 
are  so  scattered  and  so  widely  diverse  in  the  character 
of  their  inhabitants  that  they  cannot  profitably  be  dealt 
with  as  one  body.  Jamaica,  Cyprus,  Basutoland,  Singa- 
pore, and  Gibraltar,  have  little  in  common  except  their 
dependence  on  Downing  Street.  Neither  set  of  colonies 
is  sufficiently  like  the  dominion  of  Rome  to  make  it  pos- 
sible for  us  to  draw  parallels  between  them  and  it. 
India,  however,  is  a  single  subject  territory,  and  India  is 
compact,  governed  on  the  same  principles  and  by  the 
same  methods  over  an  area  not  indeed  as  wide  as  that  of 
the  Roman  Empire  but  more  populous  than  the  Roman 
Empire  was  in  its  palmiest  days.  British  India  (includ- 
ing Burma)  covers  about  965,000  square  miles,  and  the 


KOMAX   A\D   BRITISH    KMl'l A'/>  5 

protected  States  (including  Kashmir,  but  not  Nepal  and 
Bhotan),  about  600,000  square  miles,  making  a  total 
of  (roughly)  1,565,000  square  miles,  with  a  population 
of  nearly  290  millions.  The  area  of  the  territories  in- 
cluded in  the  Roman  Empire  at  its  greatest  extent  (when 
Dacia  and  the  southern  part  of  what  is  now  Scotland  be- 
longed to  it)  may  have  been  nearly  2,500,000  square 
miles.  The  population  of  that  area  is  now,  upon  a  very 
rough  estimate,  about  210  millions.  What  it  was  in 
ancient  times  we  have  no  data  even  for  guessing,  but  it 
must  evidently  have  been  much  smaller,  possibly  not 
loo  millions,  for  although  large  regions,  such  as  parts 
of  Asia  Minor  and  Tunisia,  now  almost  deserted,  were 
then  filled  by  a  dense  industrial  population,  the  increase 
in  the  inhabitants  of  France  and  England,  for  instance, 
has  far  more  than  compensated  this  decline. 

The  Spanish  Empire  in  America  as  it  stood  in  the 
sixteenth  and  seventeenth  centuries  was  still  vaster  in 
area,  as  is  the  Russian  Empire  in  Asia  to-day.  But  the 
population  of  Spanish  America  was  extremely  small  in 
comparison  with  that  of  the  Roman  Empire  or  that  of 
India,  and  its  organization  much  looser  and  less  elabo- 
rate1. Both  the  Spanish  and  the  Russian  Empires,  how- 
ever, furnish  illustrations  which  we  shall  have  occasion 
presently  to  note. 

Of  all  the  dominions  which  the  ancient  world  saw,  it 
is  only  that  of  Rome  that  can  well  be  compared  with 
any  modern  civilized  State.  The  monarchies  of  the 
Assyrian  and  Egyptian  conquerors,  like  those  of  the 
Seleucid  kings  and  of  the  Sassanid  dynasty  in  Persia, 
stood  on  a  far  lower  level  of  culture  and  administrative 
efficiency  than  did  the  Roman.  Neither  was  there  in  the 
Middle  Ages  any  far  stretching  dominion  fit  to  be 
matched  with  that  of  Rome,  for  the  great  Ommiad 
Khalifate  and  the  Mogul  monarchy  in  India  were  both 
of  them  mere  aggregates  of  territories,  not  really  unified 

1  The  total  area  of  the  Russian  Empire  exceeds  8,000,000  square  miles,  and  the 
population  is  about  130,000,000. 


6  ROMAN  AND  BRITISH  EMPIRES 

by  any  administrative  system,  while  the  authority  or 
suzerainty  of  the  Chinese  sovereigns  over  Turkistan, 
Mongolia,  and  Tibet  presents  even  fewer  points  of  resem- 
blance. So  when  we  wish  to  examine  the  methods  and 
the  results  of  British  rule  in  India  by  the  light  of  any 
other  dominion  exercised  under  conditions  even  re- 
motely similar,  it  is  to  the  Roman  Empire  of  the  cen- 
turies between  Augustus  and  Honorius  that  we  must  go. 

When  one  speaks  of  conditions  even  remotely  similar 
one  must  frankly  admit  the  existence  of  an  obvious  and 
salient  point  of  contrast.  Rome  stood  in  the  middle  of 
her  dominions,  Britain  stands,  by  the  Red  Sea  route, 
six  thousand  miles  from  the  nearest  part  of  hers.  She 
can  reach  them  only  by  water,  and  she  conquered  them 
by  troops  which  had  been  sent  around  the  Cape  over 
some  thirteen  thousand  miles  of  ocean.  Here  there  is 
indeed  an  unlikeness  of  the  utmost  significance.  Yet, 
without  minimizing  the  importance  of  the  contrast,  we 
must  remember  that  Britain  can  communicate  more 
quickly  with  the  most  distant  part  of  her  territories  than 
Rome  could  with  hers.  It  takes  only  twenty-two  days 
to  reach  any  part  of  British  India  (except  Kashmir  and 
Upper  Assam)  from  London.  But  it  took  a  nimble,  or 
as  Herodotus  says,  a  '  well  girt  traveller,'  perhaps  forty 
days  from  Rome  to  reach  Derr  on  the  Nile,  the  last  for- 
tress in  Nubia  where  Roman  masonry  can  be  seen,  or 
Gori,  at  the  foot  of  the  Caucasus,  also  a  Roman  strong- 
hold, or  Old  Kilpatrick  (near  Dumbarton)  where  the 
rampart  of  Antoninus  touches  the  Clyde  ;  not  to  add  that 
the  sea  part  of  these  journeys  might  be  much  longer  if 
the  winds  were  adverse.  News  could  be  carried  not 
much  faster  than  an  official  could  travel,  whereas  Britain 
is,  by  the  electric  telegraph,  in  hourly  communication 
with  every  part  of  India :  and  the  difference  in  speed 
between  the  movement  of  an  army  and  that  of  a  traveller 
was,  of  course,  greater  in  ancient  times  than  it  is  now. 

Thus,  for  the  purposes  both  of  war  and  of  administra- 
tion, England  is  better  placed  than  Rome  was  as  respects 


ROMA  \     AND    HKITISH    EMI'IHI. '>  7 

those  outlying  parts  of  the  Roman  Empire  which  were 
most  exposed  to  attack.  Dangers  are  more  quickly 
known  at  head  quarters ;  troops  can  reach  the  threa- 
tened frontier  in  a  shorter  time ;  errors  in  policy  can  be 
more  adequately  corrected,  because  explanations  can  be" 
asked,  and  blundering  officials  can  be  more  promptly 
dismissed.  Nevertheless  the  remoteness  of  India  has 
had  results  of  the  highest  moment  in  making  her  rela- 
tion to  England  far  less  close  than  was  that  of  Rome 
to  the  provinces. 

This  point  will  be  considered  presently.  Meantime 
our  comparison  may  begin  with  the  points  in  which  the 
two  Empires  resemble  and  illustrate  one  another.  The 
first  of  these  turns  upon  the  circumstances  of  their  re- 
spective origins. 

Empire  is  retained,  says  a  famous  maxim,  by  the  same 
arts  whereby  it  was  won.  Some  Empires  have  been 
won  easily.  Spain  acquired  hers  through  the  pertinacity 
and  daring  of  a  Genoese  sailor.  She  had  comparatively 
little  fighting  to  do,  for  the  only  opponents  she  encoun- 
tered, who  added  to  valour  some  slight  tincture  of  civili- 
zation, were  the  Mexicans. 

Russia  has  met  with  practically  no  resistance  in  occu- 
pying her  vast  territories  in  Northern  Asia ;  though  she 
had  some  sharp  tussles  with  the  nomad  Turkmans,  and 
tedious  conflicts  both  with  Shamyl  and  with  the  Circas- 
sians in  the  Caucasus.  But  both  Rome  and  England 
had  to  fight  long  and  fight  hard  for  what  they  won.  The 
progress  of  Roman  and  British  expansion  illustrates  the 
remark  of  Oliver  Cromwell  that  no  one  goes  so  far  as 
he  who  does  not  know  whither  he  is  going.  Neither 
power  set  out  with  a  purpose  of  conquest,  such  as 
Alexander  the  Great,  and  perhaps  Cyrus,  had  planned 
and  carried  out  before  them.  Just  as  Polybius,  writing 
just  after  the  destruction  of  Carthage  in  B.  c.  146,  already 
perceived  that  Rome  was,  by  the  strength  of  her  govern- 
ment and  the  character  of  her  people,  destined  to  be 
the  dominant  power  of  the  civilized  world,  so  it  was 


8  ROMAN  AND   BRITISH   EMPIRES 

prophesied  immediately  after  the  first  victories  of 
Clive  that  the  English  would  come  to  be  the  masters 
of  all  India.  Each  nation  was  drawn  on  by  finding 
that  one  conquest  led  almost  inevitably  to  another  be- 
cause restless  border  tribes  had  to  be  subdued,  be- 
cause formidable  neighbours  seemed  to  endanger 
the  safety  of  subjugated  but  often  discontented  pro- 
vinces, because  allies  inferior  in  strength  passed  gradu- 
ally into  the  position  first  of  dependants  and  then  of 
subjects. 

The  Romans  however,  though  they  did  not  start  out 
with  the  notion  of  conquering  even  Italy,  much  less  the 
Mediterranean  world,  came  to  enjoy  fighting  for  its  own 
sake,  and  were  content  with  slight  pretexts  for  it.  For 
several  centuries  they  were  always  more  or  less  at  war 
somewhere.  The  English  went  to  India  as  traders, 
with  no  intention  of  fighting  anybody,  and  were  led 
into  the  acquisition  of  territory  partly  in  order  to  recoup 
themselves  for  the  expensive  efforts  they  had  made  to 
support  their  first  allies,  partly  that  they  might  get 
revenue  for  the  East  India  Company's  shareholders, 
partly  in  order  to  counterwork  the  schemes  of  the 
French,  who  were  at  once  their  enemies  in  Europe  and 
their  rivals  in  the  East.  One  may  find  a  not  too  fanciful 
analogy  to  the  policy  of  the  English  in  the  days  of  Clive, 
when  they  were  drawn  further  and  further  into  Indian 
conflicts  by  their  efforts  to  check  the  enterprises  of 
Dupleix  and  Lally,  in  the  policy  of  the  Romans  when 
they  entered  Sicily  to  prevent  Carthage  from  establish- 
ing her  control  over  it.  In  both  cases  an  effort  which 
seemed  self-protective  led  to  a  long  series  of  wars  and 
annexations. 

Rome  did  not  march  so  swiftly  from  conquest  to  con- 
quest as  did  England.  Not  to  speak  of  the  two  cen- 
turies during  which  she  was  making  herself  supreme  in 
Italy,  she  began  to  conquer  outside  its  limits  from  the 
opening  of  the  First  Punic  War  in  B.C.  264,  and  did 
not  acquire  Egypt  till  B.  c.  30,  and  South  Britain  till 


ROMAN  AND  BRITISH  EMPIRES  9 

A.  D.  43-85  1.  Her  Eastern  conquests  were  all  the  easier 
because  Alexander  the  Great's  victories,  and  the  wars 
waged  by  his  successors,  had  broken  up  and  denation- 
alized the  East,  much  as  the  Mogul  conquerors  after- 
wards paved  the  way  for  the  English  in  India.  England's 
first  territorial  gains  were  won  at  Plassy  in  A.  D.  1757  2 : 
her  latest  acquisition  was  the  occupation  of  Mandalay  in 
1885.  Her  work  was  done  in  a  century  and  a  quarter, 
while  that  of  Rome  took  fully  three  centuries.  But  Eng- 
land had  two  great  advantages.  Her  antagonists  were 
immeasurably  inferior  to  her  in  arms  as  well  as  in  dis- 
cipline. As  early  as  A.  D.  1672  the  great  Leibnitz  had  in 
a  letter  to  Lewis  XIV  pointed  out  the  weakness  of  the 
Mogul  Empire ;  and  about  the  same  time  Bernier,  a 
French  physician  resident  at  the  Court  of  Aurungzeb, 
declared  that  20,000  French  troops  under  Conde  or 
Turenne  could  conquer  all  India3.  A  small  European 
force,  and  even  a  small  native  force  drilled  and  led  by 
Europeans,  was  as  capable  of  routing  huge  Asiatic  ar- 
mies as  the  army  of  Alexander  had  proved  capable  of 
overthrowing  the  immensely  more  numerous  hosts  of 
Darius  Codomannus.  Moreover,  the  moment  when  the 
English  appeared  on  the  scene  was  opportune.  The 
splendid  Empire  of  Akbar  was  crumbling  to  pieces.  The 
Mahratta  confederacy  had  attained  great  military  power, 
but  at  the  battle  of  Paniput,  in  1761,  it  received  from  the 
Afghans  under  Ahmed  Shah  Durani  a  terrific  blow  which 
for  the  time  arrested  its  conquests.  Furthermore,  India, 
as  a  whole,  was  divided  into  numerous  principalities, 
the  feeblest  of  which  lay  on  the  coasts  of  the  Bay  of  Ben- 
gal. These  principalities  were  frequently  at  war  with  one 
another,  and  glad  to  obtain  European  aid  in  their  strife. 

1  Dacia  was  taken  by  Trajan  in  A.  D.  107,  and  lost  in  A.  D.  251.     Mesopotamia 
and  Arabia  Petraea  were  annexed  by  Trajan  about  the  same  time,  but  the  former 
was  renounced  so  soon  afterwards  that    ts  conquest  can  hardly  be  considered  a 
part  of  the  regular  process  of  expansion. 

2  Territorial  authority  may  be  said  to  date  from  the  grant  of  the  Diwani  in 
1765. 

3  See  the  admirably  clear  and  thoughtful  book  of  Sir  A.  C.  Lyall,  Rise  of  British 
Dominion  in  India,  pp.  52  and  126. 


10  ROMAN  AND  BRITISH  EMPIRES 

And  England  had  a  third  advantage  in  the  fact  that  she 
encountered  the  weakest  of  her  antagonists  first.  Had 
she,  in  those  early  days  when  her  forces  were  slender, 
been  opposed  by  the  valour  of  Marathas  or  Sikhs,  in- 
stead of  by  the  feeble  Bengalis  and  Madrassis,  her  ambi- 
tions might  have  been  nipped  in  the  bud.  When  she 
found  herself  confronted  by  these  formidable  foes  she 
had  already  gained  experience  and  had  formed  a  strong 
native  army.  But  when  the  Romans  strove  against  the 
Achaean  League  and  Macedon  they  had  to  fight  troops 
all  but  equal  to  themselves.  When  Carthage  was  their 
antagonist,  they  found  in  Hamilcar  a  commander  equal, 
in  Hannibal  a  commander  superior  to  any  one  they  could 
send  against  him.  These  earlier  struggles  so  trained 
Rome  to  victory  that  her  later  conquests  were  made 
more  easily.  The  triumphs  of  the  century  before  and  the 
century  after  Julius  Caesar  were  won  either  over  Asi- 
atics, who  had  discipline  but  seldom  valour,  or  over  Gauls, 
Iberians,  Germans,  and  Caledonians,  who  had  valour 
but  not  discipline.  Occasional  reverses  were  due  to 
the  imprudence  of  a  general,  or  to  an  extreme  disparity 
of  forces ;  for,  like  the  English,  the  Romans  did  not  hesi- 
tate to  meet  greatly  superior  numbers.  The  defeat  of 
Crassus  by  the  Parthians  and  the  catastrophe  which 
befel  Varus  in  the  forests  of  Paderborn  find  a  parallel 
in  the  disastrous  retreat  of  the  English  army  from  Cabul 
in  1843.  Except  on  such  rare  occasions  the  supremacy 
of  Roman  arms  was  never  seriously  challenged,  nor  was 
any  great  calamity  suffered  till  the  barbarian  irruption 
into  Italy  in  the  reign  of  Marcus  Aurelius.  A  still  graver 
omen  for  the  future  was  the  overthrow  of  Valerian  by 
the  Persians  in  A.  D.  260.  The  Persians  were  inferior 
in  the  arts  of  civilization  and  probably  in  discipline : 
but  the  composition  of  the  Roman  armies  was  no  longer 
what  it  had  been  three  centuries  earlier,  for  the  peasantry 
of  Italy,  which  had  formed  the  kernel  of  their  strength, 
were  no  longer  available.  As  the  provincial  subjects  be- 
came less  and  less  warlike,  men  from  beyond  the  frontier 


ROMAN  AND   BRITISH   EMPIRES  11 

were  enrolled,  latterly  in  bodies  under  their  native  chiefs 
— Germans,  or  Arabs,  or,  in  still  later  days,  Huns — just 
as  the  native  army  in  British  India,  which  has  now  be- 
come far  more  peaceful  than  it  was  a  century  ago,  is  re- 
cruited by  Pathans  and  Ghurkas  from  the  hills  outside 
British  territory  as  well  as  by  the  most  warlike  among 
the  Indian  subjects  of  the  Crown.  The  danger  of  the 
practice  is  obvious.  Rome  was  driven  to  it  for  want 
of  Roman  fighting-men1.  England  guards  against  its 
risks  by  having  a  considerable  force  of  British  troops 
alongside  her  native  army. 

The  fact  that  their  dominions  were  acquired  by  force 
of  arms  exerted  an  enduring  effect  upon  the  Roman 
Empire  and  continues  to  exert  it  upon  the  British  in 
imprinting  upon  their  rule  in  India  a  permanently  mili- 
tary character.  The  Roman  administration  began  with 
this  character,  and  never  lost  it,  at  least  in  the  frontier 
provinces.  The  governors  were  pro-consuls  or  pro- 
praetors, or  other  officials,  entrusted  with  the  exercise 
of  an  authority  in  its  origin  military  rather  than  civil. 
A  governor's  first  duty  was  to  command  the  troops 
stationed  in  the  province.  The  camps  grew  into  towns, 
and  that  which  had  been  a  group  of  canabac  or  market 
stalls,  a  sort  of  bazaar  for  the  service  of  the  camp,  some- 
times became  a  municipality.  One  of  the  most  efficient 
means  of  unifying  the  Empire  was  found  in  the  bringing 
of  soldiers  born  in  one  part  of  it  to  be  quartered  for  many 
years  together  in  another.  Military  distinction  was  open 
to  every  subject,  and  military  distinction  might  lead  to 
the  imperial  throne.  So  the  English  in  India  are  pri- 
marily soldiers.  True  it  is  that  they  went  to  India  three 
centuries  ago  as  traders,  that  it  was  out  of  a  trading  com- 
pany that  their  power  arose,  and  that  this  trading  com- 
pany did  not  disappear  till  1858.  The  covenanted  civil 
service,  to  which  Give  for  instance  belonged,  began  as  a 
body  of  commercial  clerks.  Nothing  sounds  more  paci- 

1  And  indeed  the  employment  of  these  barbarians  to  resist  the  outer  barbarians 
probably  prolonged  the  life  of  the  Empire. 


12  ROMAN  AND  BRITISH  EMPIRES 

fic.  But  the  men  of  the  sword  very  soon  began  to  eclipse 
the  men  of  the  quill  and  account  book.  Being  in  the  ma- 
jority, they  do  so  still,  although  foi  forty  years  there 
have  been  none  but  petty  frontier  wars.  Society  is  not  in 
India,  as  it  is  in  England,  an  ordinary  civil  society  occu- 
pied with  the  works  and  arts  of  peace,  with  an  extremely 
small  military  element.  It  is  military  society,  military 
first  and  foremost,  though  with  an  infusion  of  civilian 
officials,  and  in  some  towns  with  a  small  infusion  of  law- 
yers and  merchants,  as  well  as  a  still  smaller  infusion  of 
missionaries.  Military  questions  occupy  every  one's 
thoughts  and  talk.  A  great  deal  of  administrative  or 
diplomatic  work  is  done,  and  often  extremely  well  done, 
by  officers  in  civil  employment.  Many  of  the  railways 
are  primarily  strategic  lines,  as  were  the  Roman  roads. 
The  railway  stations  are  often  placed,  for  military  rea- 
sons, at  a  distance  from  the  towns  they  serve :  and  the 
cantonments  where  the  Europeans,  civilians  as  well  as 
soldiers,  reside, usually  built  some  way  off  from  the  native 
cities,  have  themselves,  as  happened  in  the  Roman  Em- 
pire, grown  into  regular  towns.  The  traveller  from 
peaceful  England  feels  himself,  except  perhaps  in  Bom- 
bay, surrounded  by  an  atmosphere  of  gunpowder  all  the 
time  he  stays  in  India. 

Before  we  pass  from  the  military  aspects  of  the  com- 
parison let  it  be  noted  that  both  Empires  have  been 
favoured  in  their  extension  and  their  maintenance  by 
the  frontiers  which  Nature  had  provided.  The  Romans, 
when  once  they  had  conquered  Numidia,  Spain,  and 
Gaul,  had  the  ocean  and  nothing  but  the  ocean  (save 
for  the  insignificant  exception  of  barbarous  Mauretania) 
to  the  west  and  north-west  of  them,  an  awesome  and 
untravelled  ocean,  from  whose  unknown  further  shore 
no  enemy  could  appear.  To  the  south  they  were  de- 
fended by  the  equally  impassable  barrier  of  a  torrid 
and  waterless  desert,  stretching  from  the  Nile  to  the 
Atlantic.  It  was  only  on  the  north  and  east  that  there 
were  frontiers  to  be  defended;  and  these  two  sides 


ROMAN  AND  BRITISH  EMPIRES  13 

remained  the  quarters  of  danger,  because  no  natural 
barrier,  arresting  the  progress  of  armies  or  constituting 
a  defensible  frontier,  could  be  found  without  pushing 
all  the  way  to  the  Baltic  in  one  direction  or  to  the  ranges 
of  Southern  Kurdistan,  perhaps  even  to  the  deserts  of 
Eastern  Persia  in  the  other.  The  north  and  the  east 
ultimately  destroyed  Rome.  The  north  sent  in  those 
Teutonic  tribes  which  occupied  the  western  provinces 
and  at  last  Italy  herself,  and  those  Slavonic  tribes  which 
settled  between  the  Danube,  the  Aegean,  and  the 
Adriatic,  and  permeated  the  older  population  of  the 
Hellenic  lands.  Perhaps  the  Emperors  would  have  done 
better  for  the  Empire  (whatever  might  have  been  the 
ultimate  loss  to  mankind)  if,  instead  of  allowing  them- 
selves to  be  disheartened  by  the  defeat  of  Varus,  they  had 
pushed  their  conquests  all  the  way  to  the  Baltic  and  the 
Vistula,  and  turned  the  peoples  of  North  and  Middle 
Germany  into  provincial  Romans.  The  undertaking 
would  not  have  been  beyond  the  resources  of  the  Empire 
in  its  vigorous  prime,  and  would  have  been  remunera- 
tive, if  not  in  money,  at  any  rate  in  the  way  of  providing 
a  supply  of  fighting-men  for  the  army.  So  too  the  Em- 
perors might  possibly  have  saved  much  suffering  to  their 
Romanized  subjects  in  South  Britain  had  they  followed 
up  the  expedition  of  Agricola  and  subdued  the  peoples 
of  Caledonia  and  lerne,  who  afterwards  became  disagree- 
able as  Picts  and  Scots.  The  east  was  the  home  of  the 
Parthians,  of  the  Persians,  so  formidable  to  the  By- 
zantine Emperors  in  the  days  of  Kobad  and  Chosroes 
Anushirwan,  and  of  the  tribes  which  in  the  seventh  and 
eighth  centuries,  fired  by  the  enthusiasm  of  a  new  faith 
and  by  the  prospect  of  booty,  overthrew  the  Roman 
armies  and  turned  Egypt,  Syria,  Africa,  Spain,  and  ulti- 
mately the  greater  part  of  Asia  Minor  into  Muhamadan 
kingdoms.  Had  Rome  been  menaced  on  the  south  and 
west  as  she  was  generally  menaced  on  the  east  and  some- 
times on  the  north,  her  Empire  could  hardly  have  lived 
so  long.  Had  she  possessed  a  natural  barrier  on  the 


14  ROMAN  AND  BRITISH  EMPIRES 

east  like  that  which  the  Sahara  provided  on  the  south 
she  might  have  found  it  easy  to  resist,  and  not  so  very 
hard  even  to  subjugate,  the  fighting  races  of  the  north. 

Far  more  fortunate  has  been  the  position  of  the 
English  in  India.  No  other  of  the  great  countries  of  the 
world  is  protected  by  such  a  stupendous  line  of  natural 
entrenchments  as  India  possesses  in  the  chain  of  the 
Himalayas  from  Attock  and  Peshawur  in  the  west  to 
the  point  where,  in  the  far  east,  the  Tsanpo  emerges 
from  Tibet  to  become  in  Upper  Assam  the  Brahmaputra. 
Not  only  is  this  mountain  mass  the  loftiest  and  most 
impassable  to  be  found  anywhere  on  our  earth;  it  is 
backed  by  a  wide  stretch  of  high  and  barren  country, 
so  thinly  peopled  as  to  be  incapable  of  constituting 
a  menace  to  those  who  live  in  the  plains  south  of  the 
Himalayas.  And  in  point  of  fact  the  relations,  com- 
mercial as  well  as  political,  of  India  with  Tibet,  and  with 
the  Chinese  who  are  suzerains  of  Tibet,  have  been,  at 
least  in  historical  times,  extremely  scanty.  On  the  east, 
India  is  divided  from  the  Indo-Chinese  peoples,  Talains, 
Burmese  and  Shans,  by  a  belt  of  almost  impenetrable 
hill  and  forest  country:  nor  have  these  peoples  ever 
been  formidable  neighbours.  It  is  only  at  its  north- 
western angle,  between  Peshawur  and  Quetta  (for  south 
of  Quetta  as  far  as  the  Arabian  Sea  there  are  deserts 
behind  the  mountains  and  the  Indus)  that  India  is  vulner- 
able. The  rest  of  the  country  is  protected  by  a  wide 
ocean.  Accordingly  the  masters  of  India  have  had  only 
two  sets  of  foes  to  fear ;  European  maritime  powers  who 
may  arrive  by  sea  after  a  voyage  which,  until  our  own 
time,  was  a  voyage  of  three  or  four  months,  and  land 
powers  who,  coming  from  the  side  of  Turkistan  or  Per- 
sia, may  find  their  way,  as  did  Alexander  the  Great  and 
Nadir  Shah,  through  difficult  passes  into  the  plains  of 
the  Punjab  and  Sindh.  This  singular  natural  isolation 
of  India,  as  it  facilitated  the  English  conquest  by  prevent- 
ing the  native  princes  from  forming  alliances  with  or 
obtaining  help  from  powers  beyond  the  mountains  or  the 


ROMAN  AND  BRITISH  EMPIRES  15 

sea,  so  has  it  also  enabled  the  English  to  maintain  their 
hold  with  an  army  extraordinarily  small  in  proportion 
to  the  population  of  the  country.  The  total  strength  of 
the  Roman  military  establishment  in  the  days  of  Trajan, 
was  for  an  area  of  some  two  and  a  half  millions  of  square 
miles  and  population  of  possibly  one  hundred  millions, 
between  280,000  and  320,000  men.  Probably  four-fifths 
of  this  force  was  stationed  on  the  Rhine,  the  Danube,  and 
the  Euphrates.  There  were  so  few  in  most  of  the  inner 
provinces  that,  as  some  one  said,  the  nations  wondered 
where  were  the  troops  that  kept  them  in  subjection. 

The  peace  or  '  established  '  strength  of  the  British 
army  in  India  is  nearly  230,000  men,  of  whom  about 
156,000  are  natives  and  74,000  Englishmen.  To  these 
there  may  be  added  the  so-called  '  active  reserve  '  of 
natives  who  have  served  with  the  colours,  about  17,000 
men,  and  about  30,000  European  volunteers.  Besides 
these  there  are  of  course  the  troops  of  the  native  princes, 
estimated  at  about  350,000  men,  many  of  them,  however, 
far  from  effective.  But  as  these  troops,  though  a  source 
of  strength  while  their  masters  are  loyal,  might  under 
altered  circumstances  be  conceivably  a  source  of  danger, 
they  can  hardly  be  reckoned  as  part  of  the  total  force 
disposable  by  the  British  Government.  Recently,  how- 
ever, about  20,000  of  them  have  been  organized  as  spe- 
cial contingents  of  the  British  army,  inspected  and  ad- 
vised by  British  officers,  and  fit  to  take  their  place  with 
regiments  of  the  line. 

It  would  obviously  be  impossible  to  defend  such  widely 
extended  dominions  by  a  force  of  only  230,000  or  250,000 
men,  but  for  the  remoteness  of  all  possibly  danger- 
ous assailants.  The  only  formidable  land  neighbour  is 
Russia,  the  nearest  point  of  whose  territories  in  the 
Pamirs  is  a  good  long  way  from  the  present  British  out- 
posts, with  a  very  difficult  country  between.  The  next 
nearest  is  France  on  the  Mekong  River,  some  200  miles 
from  British  Burma,  though  a  shorter  distance  from 
Native  States  under  British  influence.  As  for  sea  powers, 


16  ROMAN  AND  BRITISH  EMPIRES 

not  only  is  Europe  a  long  way  off,  but  the  navy  of  Britain 
holds  the  sea.  It  was  by  her  command  of  the  sea  that 
Britain  won  India.  Were  she  to  cease  to  hold  it,  her 
position  there  would  be  insecure  indeed. 

In  another  respect  also  the  sharp  severance  of  India 
from  all  the  surrounding  countries  may  be  deemed  to 
have  proved  a  benefit  to  the  English.  It  has  relieved 
them  largely  if  not  altogether  from  the  temptation  to 
go  on  perpetually  extending  their  borders  by  annexing 
contiguous  territory.  When  they  had  reached  the  natu- 
ral boundaries  of  the  Himalayas  and  the  ranges  of 
Afghanistan,  they  stopped.  Beyond  these  lie  rugged 
and  unprofitable  highlands,  and  still  more  unprofitable 
wildernesses.  In  two  regions  only  was. an  advance  pos- 
sible :  and  in  those  two  regions  they  have  yielded  to 
temptation.  They  have  crossed  the  southern  part  of 
the  Soliman  mountains  into  Baluchistan  in  search  for  a 
more  '  scientific  '  frontier,  halting  for  the  present  on  the 
Amram  range,  north-west  of  Quetta,  where  from  the 
Khojak  heights  the  eye,  ranging  over  a  dark-brown  arid 
plain,  descries  seventy  miles  away  the  rocks  that  hang 
over  Kandahar.  They  moved  on  from  Arakhan  and 
Tenasserim  into  Lower  Burma,  whence  in  1885  they  con- 
quered Upper  Burma  and  proclaimed  their  suzerainty 
over  some  of  the  Shan  principalities  lying  further  to  the 
east.  But  for  the  presence  of  France  in  these  regions, 
which  makes  them  desire  to  keep  Siam  in  existence  as 
a  so-called  '  Buffer  State,'  manifest  destiny  might  pro- 
bably lead  them  ultimately  eastward  across  the  Menam 
and  Mekong  to  Annam  and  Cochin  China. 

The  Romans  too  sought  for  a  scientific  frontier,  and 
hesitated  often  as  to  the  line  they  should  select,  some- 
times pushing  boldly  eastward  beyond  the  Rhine  and 
the  Euphrates,  sometimes  receding  to  those  rivers.  Not 
till  the  time  of  Hadrian  did  they  create  a  regular  system 
of  frontier  defence,  strengthened  at  many  points  by  forti- 
fications, among  which  the  forts  that  lie  along  the 
Roman  Wall  from  the  Tyne  to  the  Solway  are  perhaps 


ROMAN  AND  BRITISH  EMPIRES  17 

the  best  preserved.  So  the  English  wavered  for  a  time 
between  the  line  of  the  Indus  and  that  of  the  Soliman 
range ;  so  in  the  wild  mountain  region  beyond  Kashmir 
they  have,  within  the  last  few  years,  alternately  occupied 
and  retired  from  the  remote  outpost  of  Chitral.  It  has 
been  their  good  fortune  to  have  been  obliged  to  fortify 
a  comparatively  small  number  of  points,  and  all  of  these 
are  on  the  north-west  frontier. 

There  have  been  those  who  would  urge  them  to  occupy 
Afghanistan  and  entrench  themselves  therein  to  resist  a 
possible  Russian  invasion.  But  for  the  present  wiser 
counsels  have  prevailed.  Afghanistan  is  a  more  effective 
barrier  in  the  hands  of  its  own  fierce  tribes  than  it  would 
be  as  a  part  of  British  territory.  A  parallel  may  be 
drawn  between  the  part  it  has  played  of  late  years  and 
that  which  Armenia  played  in  the  ancient  world  from  the 
days  of  Augustus  to  those  of  Heraclius.  Both  countries 
had  been  the  seats  of  short-lived  Empires,  Armenia  in 
the  days  of  Tigranes,  Afghanistan  in  those  of  Ahmed 
Shah.  Both  are  wild  and  rugged  regions,  the  dwelling- 
places  of  warlike  races.  Christian  Armenia  was  hostile 
from  religious  sentiment  to  the  enemies  whom  Rome  had 
to  fear,  the  Persian  Fire-worshippers.  Musulman  Af- 
ghanistan dreads  the  power  of  Christian  Russia.  But 
the  loyalty  or  friendship  of  the  Armenian  princes  was  not 
always  proof  against  the  threats  of  the  formidable  Sas- 
sanids,  and  the  action  of  the  Afghans  is  an  element  of 
uncertainty  and  anxiety  to  the  British  rulers  of  India. 

To  make  forces  so  small  as  those  on  which  Rome  re- 
lied and  those  which  now  defend  British  India  adequate 
for  the  work  they  have  to  do,  good  means  of  communi- 
cation are  indispensable.  It  was  one  of  the  first  tasks 
of  the  Romans  to  establish  such  means.  They  were  the 
great — indeed  one  may  say,  the  only — road  builders  of 
antiquity.  They  began  this  policy  before  they  had  com- 
pleted the  conquest  of  Italy ;  and  it  was  one  of  the  devices 
which  assured  their  supremacy  throughout  the  penin- 
sula. They  followed  it  out  in  Gaul,  Spain,  Africa,  Britain, 


18  ROMAN  AND  BRITISH  EMPIRES 

and  the  East,  doing  their  work  so  thoroughly  that  in 
Britain  some  of  the  roads  continued  to  be  the  chief  ave- 
nues of  travel  down  till  the  eighteenth  century.  So  the 
English  have  been  in  India  a  great  engineering  people, 
constructing  lines  of  communication,  first  roads  and 
afterwards  railways,  on  a  scale  of  expenditure  unknown 
to  earlier  ages.  The  potentates  of  elder  days,  Hindu  ra- 
jahs, and  subsequently  Pathans  and  Moguls,  with  other 
less  famous  Musulman  dynasties,  have  left  their  memo- 
rials in  temples  and  mosques,  in  palaces  and  tombs.  The 
English  are  commemorating  their  sway  by  railway  works, 
by  tunnels  and  cuttings,  by  embankments  and  bridges.  If 
India  were  to  relapse  into  barbarism  the  bridges,  being 
mostly  of  iron,  would  after  a  while  perish,  and  the  em- 
bankments would  in  time  be  swept  away  by  torrential 
rains,  but  the  rock-cuttings  and  the  tunnels  would  re- 
main, as  the  indestructible  paving-stones  of  the  Roman 
roads,  and  majestic  bridges,  like  the  Pont  du  Card  in 
Languedoc,  remain  to  witness  to  the  skill  and  thorough- 
ness with  which  a  great  race  did  its  work. 

The  opening  up  of  India  by  railroads  suggests  not  a  few 
interesting  questions  which,  however,  I  can  do  no  more 
than  indicate  here.  Railroad  construction  has  imposed 
upon  the  Indian  exchequer  a  strain  all  theheavierbecause 
some  lines,  especially  those  on  the  north-west  frontier, 
having  been  undertaken  from  strategic  rather  than  com- 
mercial motives,  will  yield  no  revenue  at  all  proportion- 
ate to  their  cost.  It  has  been  suggested  that  although 
railroads  were  meant  to  benefit  the  peasantry,  they  may 
possibly  have  increased  the  risk  of  famine,  since  they  in- 
duce the  producer  to  export  the  grain  which  was  for- 
merly locally  stored  up  in  good  years  to  meet  the  scarcity 
of  bad  years.  The  comparative  quickness  with  which 
food  can  be  carried  by  rail  into  a  famine  area  does  not — 
so  it  is  argued — compensate  for  the  loss  of  these  domes- 
tic reserves.  Railways,  bringing  the  numerous  races 
that  inhabit  India  into  a  closer  touch  with  one  another 
than  was  possible  before,  are  breaking  down,  slowly  but 


ROMAN  AND  BRITISH   EMPIRES  19 

surely,  the  demarcations  of  caste,  and  are  tending  to- 
wards an  assimilation  of  the  jarring  elements,  racial  and 
linguistic,  as  well  as  religious,  which  have  divided  India 
into  a  number  of  distinct,  and  in  many  cases  hostile, 
groups.  Centuries  may  elapse  before  this  assimilation 
can  become  a  source  of  political  danger  to  the  rulers  of 
the  country :  yet  we  discern  the  beginnings  of  the  pro- 
cess now,  especially  in  the  more  educated  class.  The 
Roman  roads,  being  highways  of  commerce  as  well  as 
of  war,  contributed  powerfully  to  draw  together  the 
peoples  whom  Rome  ruled  into  one  imperial  nationality. 
But  this  was  a  process  which,  as  we  shall  presently  note, 
was  for  Rome  an  unmixed  gain,  since  it  strengthened 
the  cohesion  of  an  Empire  whose  inhabitants  had  every 
motive  for  loyalty  to  the  imperial  Government,  if  not 
always  to  the  particular  sovereign.  The  best  efforts 
of  Britain  may  not  succeed  in  obtaining  a  similar  attach- 
ment from  her  Indian  subjects,  and  their  union  into  a 
body  animated  by  one  national  sentiment  might  become 
an  element  of  danger  against  which  she  has  never  yet 
been  required  to  take  precautions. 

The  excellence  of  the  highways  of  communication 
provided  by  the  wise  energy  of  the  Romans  and  of  the 
English  has  contributed  not  only  to  the  easier  defence 
of  the  frontiers  of  both  Empires,  but  also  to  the  main- 
tenance of  a  wonderfully  high  standard  of  internal 
peace  and  order.  Let  any  one  think  of  the  general  state 
of  the  ancient  world  before  the  conquests  of  Rome,  and 
let  him  then  think  of  the  condition  not  merely  of  India 
after  the  death  of  the  Emperor  Aurungzeb,  but  of  the 
chief  European  countries  as  they  stood  in  the  seven- 
teenth century,  if  he  wishes  to  appreciate  what  Rome  did 
for  her  subjects,  or  what  England  has  done  in  India.  In 
some  parts  of  Europe  private  war  still  went  on  two  hun- 
dred and  fifty  years  ago.  Almost  everywhere  robber 
bands  made  travelling  dangerous  and  levied  tribute  upon 
the  peasantry.  Even  in  the  eighteenth  century,  and 
even  within  our  own  islands,  Rob  Roy  raided  the  farm- 


20  ROMAN  AND  BRITISH  EMPIRES 

ers  of  Lennox,  and  landlords  in  Connaught  fought 
pitched  battles  with  one  another  at  the  head  of  their  re- 
tainers. Even  a  century  ago  the  coasts  of  the  Mediter- 
ranean were  ravaged  by  Barbary  pirates,  and  brigand- 
age reigned  unchecked  through  large  districts  of  Italy. 
But  in  the  best  days  of  the  Roman  Empire  piracy 
was  unknown;  the  peasantry  were  exempt  from  all  ex- 
actions except  those  of  the  tax-gatherer;  and  the  great 
roads  were  practically  safe  for  travellers.  Southern  and 
western  Europe,  taken  as  a  whole,  would  seem  to  have 
enjoyed  better  order  under  Hadrian  and  the  Antonines 
than  was  enjoyed  again  until  nearly  our  own  times.  This 
was  the  more  remarkable  because  the  existence  of  sla- 
very must  have  let  loose  upon  society,  in  the  form  of  run- 
away slaves,  a  good  many  dangerous  characters.  More- 
over, there  remained  some  mountainous  regions  where 
the  tribes  had  been  left  practically  to  themselves  under 
their  own  rude  customs.  These  enclaves  of  barbarism 
within  civilized  territory,  such  as  was  Albania,  in  the  cen- 
tral mountain  knot  of  which  no  traces  of  Roman  building 
have  been  found,  and  the  Isaurian  country  in  Asia  Minor, 
and  possibly  the  Cantabrian  land  on  the  borders  of  south- 
western Gaul  and  northern  Spain,  where  the  Basque 
tongue  still  survives,  do  not  appear  to  have  seriously  in- 
terfered with  the  peace  and  well-being  of  the  settled 
population  which  dwelt  around  them,  probably  because 
the  mountaineers  knew  that  it  was  only  by  good  be- 
haviour that  they  could  obtain  permission  to  enjoy  the 
measure  of  independence  that  had  been  left  to  them. 
The  parts  of  provincial  Africa  which  lay  near  the  desert 
were  less  orderly,  because  it  was  not  easy  to  get  behind 
the  wild  tribes  who  had  the  Sahara  at  their  back. 

The  internal  peace  of  the  Roman  Empire  was,  how- 
ever, less  perfect  than  that  which  has  been  established 
within  the  last  sixty  years  in  India.  Nothing  surprises 
the  visitor  from  Europe  so  much  as  the  absolute  confi- 
dence with  which  he  finds  himself  travelling  unprotected 
across  this  vast  country,  through  mountains  and  jungles, 


ROMAN  AND  BRITISH  EMPIRES  21 

among  half  savage  tribes  whose  languages  he  does  not 
know,  and  that  without  seeing,  save  at  rare  intervals,  any 
sign  of  European  administration.  Nor  is  this  confined 
to  British  India.  It  is  almost  the  same  in  Native  States. 
Even  along  the  lofty  forest  and  mountain  frontier  that 
separates  the  native  (protected)  principality  of  Sikkim 
from  Nepal — the  only  really  independent  Indian  State — 
an  Englishman  may  journey  unarmed  and  alone,  except 
for  a  couple  of  native  attendants,  for  a  week  or  more. 
When  he  asks  his  friends  at  Darjiling,  before  he  starts, 
whether  he  ought  to  take  a  revolver  with  him,  they  smile 
at  the  question.  There  is  not  so  complete  a  security 
for  native  travellers,  especially  in  Native  States,  for  here 
and  there  bands  of  brigands  called  Dacoits  infest  the 
tracks,  and  rob,  sometimes  the  wayfarer,  sometimes  the 
peasant,  escaping  into  the  recesses  of  the  jungle  when 
the  police  are  after  them.  But  dacoity,  though  it  occa- 
sionally breaks  out  afresh  in  a  few  districts,  has  become 
much  less  frequent  than  formerly.  The  practice  of 
Thuggi  which  seventy  years  ago  still  caused  many  mur- 
ders, has  been  extirpated  by  the  unceasing  energy  of 
British  officers.  Crimes  of  violence  show  a  percentage 
to  the  population  which  appears  small  when  one  con- 
siders how  many  wild  tribes  remain.  The  native  of 
course  suffers  from  violence  more  frequently  than  does 
the  European,  whose  prestige  of  race,  backed  by  the 
belief  that  punishment  will  surely  follow  on  any  injury 
done  to  him,  keeps  him  safe  in  the  wildest  districts  1. 

I  have  referred  to  the  enclaves  within  the  area  of  the 
Roman  Empire  where  rude  peoples  were  allowed  to  live 
after  their  own  fashion  so  long  as  they  did  not  disturb 
the  peace  of  their  more  civilized  neighbours.  One  finds 
the  Indian  parallel  to  these  districts,  not  so  much  in  the 
Native  States,  for  these  are  often  as  advanced  in  the 

1  An  incident  like  the  murder  in  1889  of  the  British  Resident  at  Manipur,  a  small 
Protected  State  in  the  hill  country  between  Assam  and  Burma,  is  so  rare  and  ex- 
cites so  much  surprise  and  horror  as  to  be  the  best  proof  of  the  general  tranquil- 
lity. In  that  case  there  had  been  some  provocation,  though  not  on  the  part  of  the 
Resident  himself,  an  excellent  man  of  conciliatory  temper. 


22  ROMAN  AND  BRITISH  EMPIRES 

arts  of  life,  and,  in  a  very  few  instances,  almost  as  well 
administered,  as  British  territory,  but  rather  in  the  hill 
tribes,  which  in  parts  of  central,  of  north-western,  and 
of  southern  India,  have  retained  their  savage  or  semi- 
savage  customs,  under  their  own  chiefs,  within  the  pro- 
vinces directly  subject  to  the  Crown.  These  tribes,  as 
did  the  Albanians  and  Basques,  cleave  to  their  primitive 
languages,  and  cleave  also  to  their  primitive  forms  of 
ghost-worship  or  nature-worship,  though  Hinduism  is 
beginning  to  lay  upon  them  its  tenacious  grasp.  Of 
one  another's  lives  and  property  they  are  not  very  care- 
ful. But  they  are  awed  by  the  European  and  leave  him 
unmolested. 

The  success  of  the  British,  like  that  of  the  Roman 
administration  in  securing  peace  and  good  order,  has 
been  due,  not  merely  to  a  sense  of  the  interest  which  a 
government  has  in  maintaining  conditions  which,  be- 
cause favourable  to  industry  are  favourable  also  to  re- 
venue, but  also  to  the  high  ideal  of  the  duties  of  a  ruler 
which  both  nations  have  set  before  themselves.  Earlier 
Empires,  like  those  of  the  Persian  Achaemenids  or  of 
the  successors  of  Alexander,  had  been  content  to  tax 
their  subjects  and  raise  armies  from  them.  No  monarch, 
except  perhaps  some  of  the  Ptolemies  in  Egypt,  seems 
to  have  set  himself  to  establish  a  system  from  which  his 
subjects  would  benefit.  Rome,  with  larger  and  higher 
views,  gave  to  those  whom  she  conquered  some  compen- 
sations in  better  administration  for  the  national  inde- 
pendence she  extinguished.  Her  ideals  rose  as  she  ac- 
quired experience,  and  as  she  came  to  feel  the  magni- 
ficence of  her  position.  Even  under  the  Republic  at- 
tempts were  made  to  check  abuses  of  power  on  the  part 
of  provincial  governors.  The  proceedings  against  Ver- 
res,  which  we  know  so  well  because  Cicero's  speeches 
against  that  miscreant  have  been  preserved,  are  an  in- 
stance of  steps  taken  in  the  interests  of  a  province  whose 
(discontent  was  so  little  likely  to  harm  Rome  that  no 
urgent  political  necessity  prescribed  them.  Those  pro- 


KOUAN  AND  BRITISH    /;.!//'/ A' />'  23 

ceedings  showed  how  defective  was  the  machinery  for 
controlling  or  punishing  a  provincial  governor ;  and  it  is 
clear  enough  that  a  great  deal  of  extortion  and  misfea- 
sance went  on  under  proconsuls  and  propraetors  in  the 
later  days  of  the  Republic,  to  the  enrichment,  not  only  of 
those  functionaries,  but  of  the  hungry  swarm  who  fol- 
lowed them,  including  men  who,  like  the  poet  Catullus, 
were  made  for  better  things1.  With  the  establishment 
of  a  monarchy  administration  improved.  The  Emperor 
had  a  more  definite  responsibility  for  securing  the  wel- 
fare and  contentment  of  the  provinces  than  had  been  felt 
by  the  Senate  or  the  jurors  of  the  Republic,  swayed  by 
party  interest  or  passion,  not  to  speak  of  more  sordid 
motives.  He  was,  moreover,  able  to  give  effect  to  his 
wishes  more  promptly  and  more  effectively.  He  could 
try  an  incriminated  official  in  the  way  he  thought  best, 
and  mete  out  appropriate  punishment.  It  may  indeed  be 
said  that  the  best  proof  of  the  incompetence  of  the  Re- 
publican system  for  the  task  of  governing  the  world,  and 
of  the  need  for  the  concentration  of  powers  in  a  single 
hand,  is  to  be  found  in  the  scandals  of  provincial  adminis- 
tration, scandals  which,  so  far  as  we  can  judge,  could  not 
have  been  remedied  without  a  complete  change  either  in 
the  tone  and  temper  of  the  ruling  class  at  Rome,  or  in  the 
ancient  constitution  itself. 

On  this  point  the  parallel  with  the  English  in  India  is 
interesting,  dissimilar  as  the  circumstances  were.  The 
English  administration  began  with  extortions  and  cor- 
ruptions. Officials  were  often  rapacious,  sometimes 
unjust,  in  their  dealings  with  the  native  princes.  But 
the  statesmen  and  the  public  opinion  of  England,  even 
in  the  latter  half  of  the  eighteenth  century,  had  higher 
standards  than  those  of  Rome  in  the  days  of  Sulla  and 
Cicero,  while  the  machinery  which  the  House  of  Com- 
mons provided  for  dealing  with  powerful  offenders  was 

1  Poems  x  and  xxviii.  It  is  some  comfort  to  know  that  Catullus  obtained  in 
Bithynia  only  themes  for  some  of  his  most  charming  verses  (see  poems  iv  and 
xlvi).  Gains  would  probably  have  been  ill-gotten. 


34  ROMAN  AND  BRITISH  EMPIRES 

more  effective  than  the  Roman  method  of  judicial  pro- 
ceedings before  tribunals  which  could  be,  and  frequently 
were,  bribed.  The  first  outbreak  of  greed  and  corrup- 
tion in  Bengal  was  dealt  with  by  the  strong  hand  of 
Give  in  1765.  It  made  so  great  an  impression  at  home 
as  to  give  rise  to  a  provision  in  a  statute  of  1773,  making 
offences  against  the  provisions  of  that  Act  or  against  the 
natives  of  India,  punishable  by  the  Court  of  King's  Bench 
in  England.  By  Pitt's  Act  of  1784,  a  Special  Court,  con- 
sisting of  three  judges,  four  peers,  and  six  members  of 
the  House  of  Commons,  was  created  for  the  trial  in  Eng- 
land of  offences  committed  in  India.  This  singular  tribu- 
nal, which  has  been  compared  with  the  quaestio  perpetua 
(de  pecuniis  repetundis)  of  Senators  created  by  a  Roman 
statute  of  B.  c.  149  to  try  offences  committed  by  Roman 
officials  against  provincials,  has  never  acted,  or  even  been 
summoned 1.  Soon  after  it  came  the  famous  trial  which 
is  more  familiar  to  Englishmen  than  any  other  event  in 
the  earlier  relations  of  England  and  India.  The  impeach- 
ment of  Warren  Hastings  has  often  been  compared  with 
the  trial  of  Verres,  though  Hastings  was  not  only  a  far 
more  capable,  but  a  far  less  culpable  man.  Hastings, 
like  Verres,  was  not  punished.  But  the  proceedings 
against  him  so  fixed  the  attention  of  the  nation  upon  the 
administration  of  India  as  to  secure  for  wholesome 
principles  of  conduct  a  recognition  which  was  never 
thereafter  forgotten.  The  Act  of  1784  in  establishing 
a  Board  of  Control  responsible  to  Parliament  found  a 
means  both  for  supervising  the  behaviour  of  officials  and 
for  taking  the  large  political  questions  which  arose  in 
India  out  of  the  hands  of  the  East  India  Company.  This 
Board  continued  till  India  was  placed  under  the  direct 
sway  of  the  British  Crown  in  1858.  At  the  same  time 
the  appointment  of  Governors-General  who  were  mostly 
men  of  wealth,  and  always  men  of  rank  and  position  at 
home,  provided  a  safeguard  against  such  misconduct  as 

1  See  Sir  C.  P.  Ilbert's  Government  of  India,  p.  68.    The  provision  creating  this 
Court  has  never  been  repealed. 


ROMAN  AND  BRITISH  EMPIRES  25 

the  proconsuls  under  the  Roman  Republic  had  been 
prone  to  commit.  These  latter  had  little  to  fear  from 
prosecution  when  their  term  of  office  was  over,  and  the 
opinion  of  their  class  was  not  shocked  by  offences  which 
would  have  fatally  discredited  an  English  nobleman. 
The  standard  by  which  English  public  opinion  judges 
the  behaviour  of  Indian  or  Colonial  officials  has,  on  the 
whole,  risen  during  the  nineteenth  century ;  and  the  idea 
that  the  government  of  subject-races  is  to  be  regarded 
as  a  trust  to  be  discharged  with  a  sense  of  responsibility 
to  God  and  to  humanity  at  large  has  become  generally 
accepted.  Probably  the  action  of  the  Emperors,  or  at 
least  of  such  men  as  Trajan  and  his  three  successors, 
raised  the  standard  of  opinion  in  the  Roman  Empire 
also.  It  was,  however,  not  so  much  to  that  opinion  as  to 
their  sovereign  master  that  Roman  officials  were  respon- 
sible. The  general  principles  of  policy  which  guided  the 
Emperors  were  sound,  but  how  far  they  were  applied  to 
check  corruption  or  oppression  in  each  particular  case 
is  a  matter  on  which  we  are  imperfectly  informed.  Under 
an  indolent  or  vicious  Emperor,  a  governor  who  had 
influence  at  Court,  or  who  remitted  the  full  tribute  punc- 
tually, may  probably  have  sinned  with  impunity. 

The  government  of  India  by  the  English  resembles 
that  of  her  provinces  by  Rome  in  being  thoroughly  des- 
potic. In  both  cases,  whatever  may  have  been  done 
for  the  people,  nothing  was  or  is  done  by  the  people. 
There  was  under  Rome,  and  there  is  in  British  India,  no 
room  for  popular  initiative,  or  for  popular  interference 
with  the  acts  of  the  rulers,  from  the  Viceroy  down  to 
a  district  official.  For  wrongs  cognizable  by  the  courts 
of  law,  the  courts  of  law  were  and  are  open,  doubtless 
more  fully  open  in  India  than  they  were  in  the  Roman 
Empire.  But  for  errors  in  policy  or  for  defects  in  the 
law  itself,  the  people  of  a  province  had  no  remedy  avail- 
able in  the  Roman  Empire  except  through  petition  to 
the  sovereign.  Neither  is  there  now  in  India  any  re- 
course open  to  the  inhabitants  except  an  appeal  to  the 


26  ROMAN  AND  BRITISH  EMPIRES 

Crown  or  to  Parliament,  a  Parliament  in  which  the  In- 
dian subjects  of  the  Crown  have  not  been,  and  cannot  be, 
represented.  This  was,  and  is,  by  the  nature  of  the  case, 
inevitable. 

In  comparing  the  governmental  systems  of  the  two 
Empires,  it  is  hardly  necessary  to  advert  to  such  differ- 
ences as  the  fact  that  India  is  placed  under  a  Viceroy  to 
whom  all  the  other  high  functionaries,  Governors,  Lieu- 
tenant-Governors  and  Chief  Commissioners,  are  subor- 
dinated, whereas,  in  the  Roman  world  every  provincial 
governor  stood  directly  under  the  Emperor.  Neither 
need  one  dwell  upon  the  position  in  the  English  system 
of  the  Secretary  of  State  for  India  in  Council  as  a  mem- 
ber of  the  British  Cabinet.  Such  details  do  not  affect 
the  main  point  to  which  I  now  come. 

The  territories  conquered  by  the  Romans  were  of 
three  kinds.  Some,  such  as  Egypt,  Macedonia,  and  Pon- 
tus,  had  been,  under  their  own  princes,  monarchies  prac- 
tically despotic.  In  these,  of  course,  there  could  be  no 
question  of  what  we  call  popular  government.  Some 
had  been  tribal  principalities,  monarchic  or  oligarchic, 
such  as  those  among  the  Iceni  and  Brigantes  in  Britain, 
the  Arverni  in  Gaul,  the  Cantabrian  mountaineers  in 
Spain.  Here,  again,  free  institutions  had  not  existed 
before,  and  could  hardly  have  been  created  by  the  con- 
queror. The  third  kind  consisted  of  small  common- 
wealths, such  as  the  Greek  cities.  These  were  fitted  for 
self-government,  which  indeed  they  had  enjoyed  before 
they  were  subjected  by  Rome.  Very  wisely,  municipal 
self-government  was  to  a  large  extent  left  to  them  by  the 
Emperors  down  till  the  time  of  Justinian.  It  was  more 
complete  in  some  cities  than  in  others ;  and  it  was  in 
nearly  all  gradually  reduced  by  the  equalizing  pressure  of 
the  central  authority.  But  they  were  all  placed  under  the 
governor  of  the  province ;  most  of  them  paid  taxes,  and 
in  most  both  the  criminal  and  the  higher  civil  jurisdiction 
were  in  the  hands  of  imperial  officials.  Of  the  introduc- 
tion of  any  free  institutions  for  the  empire  at  large,  or 


ROMAN  AND  BRITISH  EMPIRES  27 

even  for  any  province  as  a  whole,  there  seems  never  to 
have  been  any  question.  Among  the  many  constitutional 
inventions  we  owe  to  the  ancient  world  representative 
government  finds  no  place.  A  generation  before  the  fall 
of  the  Republic,  Rome  had  missed  her  opportunity  when 
the  creation  of  such  a  system  was  most  needed  and  might 
have  been  most  useful.  After  her  struggle  against  the 
league  of  her  Italian  allies,  she  consented  to  admit  them 
to  vote  in  her  own  city  tribes,  instead  of  taking  what 
seems  to  us  moderns  the  obvious  expedient  of  allowing 
them  to  send  delegates  to  an  assembly  which  should 
meet  in  Rome.  So  it  befell  that  monarchy  and  a  city 
republic  or  confederation  of  such  republics  remained 
the  only  political  forms  known  to  antiquity  l. 

India  is  ruled  despotically  by  the  English,  not  merely 
because  they  found  her  so  ruled,  but  because  they  con- 
ceive that  no  other  sort  of  government  would  suit  a  vast 
population  of  different  races  and  tongues,  divided  by  the 
religious  animosities  of  Hindus  and  Musulmans,  and 
with  no  sort  of  experience  of  self-government  on  a  scale 
larger  than  that  of  the  Village  Council.  No  more  in 
India  than  in  the  Roman  Empire  has  there  been  any 
question  of  establishing  free  institutions  either  for  the 
country  as  a  whole,  or  for  any  particular  province.  But 
the  English,  like  the  Romans,  have  permitted  such  self- 
government  as  they  found  to  subsist.  It  subsists  only 
in  the  very  rudimentary  but  very  useful  form  of  the  Vil- 

1  The  nearest  approach  to  any  kind  of  provincial  self-government  and  also  the 
nearest  approach  to  a  representative  system  was  made  in  the  Provincial  Councils 
which  seem  from  the  time  of  Augustus  down  to  the  fifth  century  to  have  existed 
in  all  or  nearly  all  the  provinces.  They  consisted  of  delegates  from  the  cities  of 
each  province,  and  met  annually  in  some  central  place,  where  stood  the  temple 
or  altar  to  Rome  and  Augustus.  They  were  presided  over  by  the  priest  of  these 
divinities,  and  their  primary  functions  were  to  offer  sacrifices,  provide  for  the  ex- 
pense of  the  annual  games,  and  elect  the  priest  for  next  year.  However  they  seem 
to  have  also  passed  resolutions,  such  as  votes  of  thanks  to  the  outgoing  priest  or 
to  a  departing  governor,  and  to  have  transmitted  requests  or  inquiries  to  the  Em- 
peror. Sometimes  they  arranged  for  the  prosecution  of  a  governor  who  had  mis- 
governed them  .  but  on  the  whole  their  functions  were  more  ceremonial  and  or- 
namental than  practically  important ;  nor  would  the  emperors  have  suffered  them 
to  exert  any  real  power,  though  they  were  valued  as  useful  vehicles  of  provincial 
opinion  (see  Marquardt,  Rontische  Staatsveriualtung,  vol.  i,  and  an  article  in  Eng. 
Hist.  Review  for  April,  1893,  by  Mr.  E.  G.  Hardy). 


28  ROMAN  AND  BRITISH  EMPIRES 

lage  Council  just  referred  to,  called  in  some  parts  of 
India  the  Panchayet  or  body  of  five.  Of  late  years  muni- 
cipal constitutions,  resembling  at  a  distance  those  of 
English  boroughs,  have  been  given  to  some  of  the  larger 
cities  as  a  sort  of  experiment,  for  the  sake  of  training 
the  people  to  a  sense  of  public  duty,  and  of  relieving  the 
provincial  government  of  local  duties.  So  far  the  experi- 
ment has  in  most  cities  been  only  a  moderate  success. 
The  truth  is  that,  though  a  few  intelligent  men,  edu- 
cated in  European  ideas,  complain  of  the  despotic  power 
of  the  Anglo-Indian  bureaucracy,  the  people  of  India 
generally  do  not  wish  to  govern  themselves.  Their  tradi- 
tions, their  habits,  their  ideas,  are  all  the  other  way,  and 
dispose  them  to  accept  submissively  any  rule  which  is 
strong  and  which  neither  disturbs  their  religion  and  cus- 
toms nor  lays  too  heavy  imposts  upon  them. 

Here  let  an  interesting  contrast  be  noted.  The  Roman 
Emperors  were  despots  at  home  in  Italy,  almost  as  much, 
and  ultimately  quite  as  much,  as  in  the  provinces.  The 
English  govern  their  own  country  on  democratic,  India 
on  absolutist  principles.  The  inconsistency  is  patent  but 
inevitable.  It  affords  an  easy  theme  for  declamation 
when  any  arbitrary  act  of  the  Indian  administration  gives 
rise  to  complaints,  and  it  may  fairly  be  used  as  the  founda- 
tion for  an  argument  that  a  people  which  enjoys  freedom 
at  home  is  specially  bound  to  deal  justly  and  consider- 
ately with  those  subjects  to  whom  she  refuses  a  like  free- 
dom. But  every  one  admits  in  his  heart  that  it  is  impos- 
sible to  ignore  the  differences  which  make  one  group  of 
races  unfit  for  the  institutions  which  have  given  energy 
and  contentment  to  another  more  favourably  placed. 

A  similar  inconsistency  presses  on  the  people  of  the 
United  States  in  the  Philippine  Isles.  It  is  a  more 
obtrusive  inconsistency  because  it  has  come  more  ab- 
ruptly, because  it  has  come,  not  by  the  operation  of  a 
long  series  of  historical  causes,  but  by  the  sudden  and 
little  considered  action  of  the  American  Republic  itself, 
and  because  the  American  Republic  has  proclaimed, 


ROMAN  AND   BRITISH  EMPIRES  29 

far  more  loudly  and  clearly  than  the  English  have  ever 
done,  the  principle  contained  in  the  Declaration  of  In- 
dependence that  the  consent  of  the  governed  is  the  only 
foundation  of  all  just  government.  The  Americans  will 
doubtless  in  time  either  reconcile  themselves  to  their 
illogical  position  or  alter  it.  But  for  the  present  it  gives 
to  thoughtful  men  among  them  visions  of  mocking 
spirits,  which  the  clergy  are  summoned  to  exorcize  by 
dwelling  upon  the  benefits  which  the  diffusion  of  a  pure 
faith  and  a  commercial  civilization  will  confer  upon  the 
lazy  and  superstitious  inhabitants  of  these  tropical  isles. 
Subject  to  the  general  principle  that  the  power  of 
the  Emperor  was  everywhere  supreme  and  absolute,  the 
Romans  recognized,  at  least  in  the  earlier  days  of  the 
Empire,  considerable  differences  between  the  methods 
of  administering  various  provinces.  A  distinction  was 
drawn  between  the  provinces  of  the  Roman  people,  to 
which  proconsuls  or  propraetors  were  sent,  and  the  pro- 
vinces of  Caesar,  placed  under  the  more  direct  cqntrol 
of  the  Emperor,  and  administered  in  his  name  by  an 
official  called  the  pracses  or  legatus  Caesaris,  or  sometimes 
(as  was  the  case  in  Judaea,  at  the  time  when  it  was  ruled 
by  Pontius  Pilate)  by  a  procurator,  an  officer  primarily 
financial,  but  often  entrusted  with  the  powers  of  a  pracses. 
Egypt  received  special  treatment  because  the  population 
was  turbulent  and  liable  to  outbursts  of  religious  passion, 
and  because  it  was  important  to  keep  a  great  cornfield  of 
the  Empire  in  good  humour.  These  distinctions  between 
one  province  and  another  tended  to  vanish  as  the  ad- 
ministrative system  of  the  whole  Empire  grew  better 
settled  and  the  old  republican  forms  were  forgotten.  Still 
there  were  always  marked  differences  between  Britain, 
for  instance,  at  the  one  end  of  the  realm  and  Syria  at  the 
other.  So  there  were  all  sorts  of  varieties  in  the  treat- 
ment of  cities  and  tribes  which  had  never  been  conquered, 
but  passed  peaceably  through  alliance  into  subjection. 
Some  of  the  Hellenic  cities  retained  their  republican 
institutions  till  far  down  in  imperial  times.  Distinctions 


30  ROMAN  AND   BRITISH   EMPIRES 

not  indeed  similar,  yet  analogous,  have  existed  between 
the  different  parts  of  British  India.  There  is  the  old  dis- 
tribution of  provinces  into  Regulation  and  Non-Regula- 
tion. The  name  '  Province,'  one  may  observe  in  passing^ 
a  name  unknown  elsewhere  in  the  dominions  of  Bri- 
tain 1  (though  a  recent  and  vulgar  usage  sometimes  ap- 
plies it  to  the  parts  of  England  outside  of  London)  except 
as  a  relic  of  French  dominion  in  Canada,  bears  witness  to 
an  authority  which  began,  as  in  Canada,  through  con- 
quest.' Though  the  names  of  Regulation  and  Non-Regu- 
lation provinces  are  now  no  longer  used,  a  distinction 
remains  between  the  districts  to  the  higher  posts  in  which 
none  but  members  of  the  covenanted  service  are  ap- 
pointed, and  those  in  which  the  Government  have  a 
wider  range  of  choice,  and  also  between  those  districts 
for  which  the  Governor-General  can  make  ordinances  in 
his  executive  capacity,  and  those  which  are  legislated 
for  by  him  in  Council  in  the  ordinary  way.  There  are 
also  many  differences  in  the  administrative  systems 
of  the  different  Presidencies  and  other  territories, 
besides  of  course  all  imaginable  diversities  in  the 
amount  of  independence  left  to  the  different  '  Pro- 
tected States/  some  of  which  are  powerful  kingdoms, 
like  Hyderabad,  while  many,  as  for  instance  in  Gujarat, 
are  petty  principalities  of  two  or  three  dozen  square  miles. 
The  mention  of  these  protected  States  suggests  an- 
other point  of  comparison.  Rome  brought  many  prin- 
cipalities or  kingdoms  under  her  influence,  especially  in 
the  eastern  parts  of  the  Empire  ;  and  dealt  with  each  upon 
the  basis  of  the  treaty  by  which  her  supremacy  had  been 
acknowledged,  allowing  to  some  a  wider,  to  some  a  nar- 
rower measure  of  autonomy  2.  Ultimately,  however,  all 
these,  except  a  few  on  the  frontiers,  passed  under  her 
direct  sway :  and  this  frequently  happened  in  cases  where 

1  The  use  of  the  word  to  denote  the  two  great  ecclesiastical  divisions  of  Eng- 
land (Province  of  Canterbury  and  Province  of  York)  is  a  relic  of  the  Roman  im- 
perial system. 

2  For  instance,  Cappadocia,  Pontus,  and  Commagene  were  left  as  subject  king- 
doms till  17  A.  D.,  63  A.  DM  and  72  A.  D.  respectively. 


ROMAN  AND  BRITISH   EMPIRES  31 

the  native  dynasty  had  died  out,  so  that  the  title  lapsed 
to  the  Emperor.  The  Iceni  in  Britain  seem  to  have  been 
such  a  protected  State,  and  it  was  the  failure  of  male 
heirs  that  caused  a  lapse.  So  the  Indian  Government 
was  wont,  when  the  ruling  family  became  extinct  or  hope- 
lessly incompetent,  to  annex  to  the  dominions  of  the 
British  Crown  the  principality  it  had  ruled.  From  the 
days  of  Lord  Canning,  however,  a  new  policy  has  been 
adopted.  It  is  now  deemed  better  to  maintain  the  native 
dynasties  whenever  this  can  be  done,  so  a  childless  prince 
is  suffered  to  adopt,  or  provide  for  the  adoption  of,  some 
person  approved  by  the  Government ;  and  the  descen- 
dants of  this  person  are  recognized  as  rulers  1.  The  in- 
coming prince  feels  that  he  owes  his  power  to  the  British 
Government,  while  adoption  gives  him  a  title  in  the  eyes 
of  his  subjects. 

The  differences  I  have  mentioned  between  the  British 
provinces  are  important,  not  only  as  respects  adminis- 
tration, but  as  respects  the  system  of  landholding.  All 
over  India,  as  in  many  other  Oriental  countries,  it  is 
from  the  land  that  a  large  part  of  revenue,  whether  one 
calls  it  rent  or  land  tax,  is  derived.  In  some  provinces 
the  rent  is  paid  direct  to  the  Government  by  the  culti- 
vator, in  others  it  goes  to  intermediary  landlords,  who 
in  their  turn  are  responsible  to  the  State.  In  some 
provinces  it  has  been  permanently  fixed,  by  what  is 
called  a  Land-settlement  2,  and  not  always  on  the  same 
principles.  The  subject  is  far  too  large  and  intricate  to 
be  pursued  here.  I  mention  it  because  in  the  Roman 
Empire  also  land  revenue  was  the  mainstay  of  the  im- 

1  '  The  extent  to  which  confidence  has  been  restored  by  Lord  Canning's  edict  is 
shown  by  the  curious  fact  that  since  its  promulgation  a  childless  ruler  very  rarely 
adopts  in  his  own  lifetime.  An  heir  presumptive,  who  knows  that  he  is  to  succeed 
and  who  may  possibly  grow  restive  if  his  inheritance  is  delayed,  is  for  various  ob- 
scure reasons  not  the  kind  of  person  whom  an  Oriental  ruler  cares  to  see  idling 
about  his  palace,  so  that  a  politic  chief  oftens  prefers  leaving  the  duty  of  nominat- 
ing a  successor  to  his  widows,  who  know  his  mind  and  have  every  reason  for 
wishing  him  long  life.'— Sir  A.  C.  Lyall  in  Law  Quarterly  Review  for  October, 
1893. 

a  One  finds  something  similar  to  this  Land-settlement  in  the  Roman  plan  of  de- 
termining the  land  revenue  of  a  province  by  what  was  called  the  lexjrovinciae. 


32  ROMAN  AND   BRITISH  EMPIRES 

perial  treasury.  Where  territory  had  been  taken  in  war, 
the  fact  of  conquest  was  deemed  to  have  made  the 
Roman  people  ultimate  owners  of  the  land  so  acquired, 
and  the  cultivators  became  liable  to  pay  what  we  should 
call  rent  for  it.  In  some  provinces  this  rent  was  farmed 
out  to  contractors  called  publicani,  who  offered  to  the 
State  the  sum  equivalent  to  the  rent  of  the  area  con- 
tracted for,  minus  the  expense  of  collection  and  their  own 
profit  on  the  undertaking,  and  kept  for  themselves  what- 
ever they  could  extract  from  the  peasantry.  This  vicious 
system,  resembling  that  of  the  tithe  farmers  in  Ireland 
seventy  years  ago,  was  regulated  by  Nero  and  abolished 
by  Hadrian,  who  placed  the  imperial  procurator  in  charge 
of  the  land  revenue  except  as  regarded  the  forests  and 
the  mines.  It  exists  to-day  in  the  Ottoman  Empire. 
Convenient  for  the  State  as  it  seems,  it  is  wasteful,  and 
naturally  exposes  the  peasant,  as  is  conspicuously  the 
case  in  Asiatic  Turkey,  to  oppressions  perhaps  even 
harder  to  check  than  are  those  of  State  officials.  When 
the  English  came  to  India  they  found  it  in  force  there ; 
and  the  present  landlord  class  in  Bengal,  called  Zemin- 
dars, are  the  representatives  of  the  rent  or  land  tax- 
farmers  under  the  native  princes  who  were,  perhaps 
unwisely,  recognized  as  landowners  by  the  British  a 
century  ago.  This  kind  of  tax-farming  is,  however,  no 
longer  practised  in  India,  a  merit  to  be  credited  to  the 
English  when  we  are  comparing  them  with  the  Romans 
of  the  Republic  and  the  earlier  Empire. 

Where  the  revenue  of  the  State  comes  from  the  land, 
the  State  is  obliged  to  keep  a  watchful  eye  upon  the 
condition  of  agriculture,  since  revenue  must  needs  de- 
cline when  agriculture  is  depressed.  There  was  not  in 
the  Roman  world,  and  there  is  not  in  India  now,  any 
question  of  agricultural  depression  arising  from  foreign 
competition,  for  no  grain  came  into  the  Empire  from 
outside,  or  comes  now  into  India1.  But  a  year  of 
drought,  or,  in  a  long  course  of  years,  the  exhaustion 

1  Rice,  however,  is  sent  from  Lower  Burma  into  India  proper. 


ROMAN  AND  BRITISH  EMPIRES  83 

of  the  soil,  tells  heavily  on  the  agriculturist,  and  may 
render  him  unable  to  pay  his  rent  or  land  tax.  In  bad 
years  it  was  the  practice  of  the  more  indulgent  Em- 
perors to  remit  a  part  of  the  tax  for  the  year:  and  one 
of  the  complaints  most  frequently  made  against  harsh 
sovereigns,  or  extravagant  ones  like  Justinian,  was  that 
they  refused  to  concede  such  remissions.  A  similar  in- 
dulgence has  to  be  and  is  granted  in  India  in  like  cases. 

Finance  was  the  standing  difficulty  of  the  Roman  as 
it  is  of  the  Anglo-Indian  administrator.  Indeed,  the 
Roman  Empire  may  be  said  to  have  perished  from  want 
of  revenue.  Heavy  taxation,  and  possibly  the  exhaus- 
tion of  the  soil,  led  to  the  abandonment  of  farms,  reduc- 
ing the  rent  derivable  from  the  land.  The  terrible  plague 
of  the  second  century  brought  down  population,  and 
was  followed  by  a  famine.  The  eastern  provinces  had 
never  furnished  good  fighting  material :  and  the  diminu- 
tion of  the  agricultural  population  of  Italy,  due  partly 
to  this  cause,  partly  to  the  growth  of  large  estates 
worked  by  slave  labour,  made  it  necessary  to  recruit 
the  armies  from  the  barbarians  on  the  frontiers.  Even 
in  the  later  days  of  the  Republic  the  native  auxiliaries 
were  beginning  to  be  an  important  part  of  a  Roman 
army.  Moreover,  with  a  declining  revenue,  a  military 
establishment  such  as  was  needed  to  defend  the  eastern 
and  the  northern  frontiers  could  not  always  be  main- 
tained. The  Romans  had  no  means  of  drawing  a 
revenue  from  frontier  customs,  because  there  was  very 
little  import  trade;  but  dues  were  levied  at  ports  and 
there  was  a  succession  tax,  which  usually  stood  at  five 
per  cent.  In  most  provinces  there  were  few  large  for- 
tunes on  which  an  income  or  property  tax  could  have 
been  levied,  except  those  of  persons  who  were  already 
paying  up  to  their  capacities  as  being  responsible  for  the 
land  tax  assessed  upon  their  districts.  The  salt  tax  was 
felt  so  sorely  by  the  poor  that  Aurelian  was  hailed  as  a 
benefactor  when  he  abolished  it. 

India  has  for  many  years  past  been,  if  not  in  financial 
3 


34  ROMAN  AND  BRITISH  EMPIRES 

straits,  yet  painfully  near  the  limit  of  her  taxable  re- 
sources. There  too  the  salt  tax  presses  hard  upon  the 
peasant;  and  the  number  of  fortunes  from  which  much 
can  be  extracted  by  an  income  or  property  tax  is,  rela- 
tively to  the  population,  very  small.  Comparing  her 
total  wealth  with  her  population,  India  is  a  poor  country, 
probably  poorer  than  was  the  Roman  Empire  in  the 
time  of  Constantine  1.  A  heavy  burden  lies  upon  her  in 
respect  of  the  salaries  of  the  upper  branches  of  the 
Civil  Service,  which  must  of  course  be  fixed  at  figures 
sufficient  to  attract  a  high  order  of  talent  from  England, 
and  a  still  heavier  one  in  respect  of  military  charges. 
On  the  other  hand,  she  has  the  advantage  of  being  able, 
when  the  guarantee  of  the  British  Government  is  given 
for  the  loan,  to  borrow  money  for  railways  and  other 
public  works,  at  a  rate  of  interest  very  low  as  com- 
pared with  what  the  best  Native  State  would  be  obliged 
to  offer,  or  as  compared  with  that  which  the  Roman 
Government  paid. 

Under  the  Republic,  Rome  levied  tribute  from  the 
provinces,  and  spent  some  of  it  on  herself,  though  of 
course  the  larger  part  went  to  the  general  expenses  of 
the  military  and  civil  administration.  Under  the  Em- 
perors that  which  was  spent  in  Rome  became  gradually 
less  and  less,  as  the  Emperor  became  more  and  more 
detached  from  the  imperial  city,  and  after  Diocletian, 
Italy  was  treated  as  a  province.  England,  like  Spain  in 
the  days  of  her  American  Empire  and  like  Holland  now, 
for  a  time  drew  from  her  Indian  conquests  a  substantial 
revenue.  An  inquiry  made  in  1773  showed  that,  since 
1765,  about  two  millions  a  year  had  been  paid  by  the 

1  The  total  revenue  of  British  India  was,  in  A.  D.  1840,  200,000,000  of  rupees,  and 
in  1898-9,  1,014,427,000  rupees,  more  than  a  fourth  of  which  was  land  revenue  and 
less  than  one-fourth  from  railways.  (The  exchange  value  of  the  rupee,  formerly 
about  two  shillings,  is  now  about  one  shilling  and  four  pence.)  .£190,000,000  has 
been  expended  upon  railways  in  British  India  and  the  Native  States.  The  land 
revenue  is  somewhat  increasing  with  the  bringing  of  additional  land  under  culti- 
vation. It  is  estimated  that  forty-two  per  cent,  of  the  cultivable  area  is  available 
for  further  cultivation.  The  funded  debt  of  India  is  now  ^195,000,000,  the  un- 
funded about  ^12,000,000. 


ROMAN  AND  BRITISH  EMPIRES  35 

Company  to  the  British  exchequer.  By  1773,  however, 
the  Company  had  incurred  such  heavy  debts  that  the 
exchequer  had  to  lend  them  money:  and  since  that 
time  Britain  has  drawn  no  tribute  from  India.  She 
profits  by  her  dominion  only  in  respect  of  having  an 
enormous  market  for  her  goods,  industrial  or  commer- 
cial enterprises  offering  comparatively  safe  investments 
for  her  capital,  and  a  field  where  her  sons  can  make 
a  career.  Apart  from  any  considerations  of  justice  or  of 
sentiment,  India  could  not  afford  to  make  any  substantial 
contribution  to  the  expenses  of  the  non-Indian  domi- 
nions of  the  Crown.  It  is  all  she  can  do  to  pay  her  own 
way. 

Those  whom  Rome  sent  out  to  govern  the  provinces 
were,  in  the  days  of  the  Republic  and  in  the  days  of 
Augustus,  Romans,  that  is  to  say  Roman  citizens  and 
natives  of  Italy.  Very  soon,  however,  citizens  born  in 
the  provinces  began  to  be  admitted  to  the  great  offices 
and  to  be  selected  by  the  Emperor  for  high  employment. 
As  early  as  the  time  of  Nero,  an  Aquitanian  chief,  Julius 
Vindex,  was  legate  of  the  great  province  of  Gallia  Lug- 
dunensis.  When  the  imperial  throne  itself  was  filled  by 
provincials,  as  was  often  the  case  from  Trajan  onwards, 
it  was  plain  that  the  pre-eminence  of  Italy  was  gone. 
If  a  man,  otherwise  eligible,  was  not  a  full  Roman 
citizen,  the  Emperor  forthwith  made  him  one.  By  the 
time  of  the  Antonines  (A.  D.  138-180)  there  was  prac- 
tically no  distinction  between  a  Roman  and  a  provincial 
citizen ;  and  we  may  safely  assume  that  the  large  major- 
ity of  important  posts,  both  military  and  civil,  were  held 
by  men  of  provincial  extraction.  Indeed  merit  probably 
won  its  way  faster  to  military  than  to  civil  distinction, 
for  in  governments  which  are  militant  as  well  as  military, 
promotion  by  merit  is  essential  to  the  success  of  the 
national  arms,  and  the  soldier  identifies  himself  with  the 
power  he  serves  even  faster  than  does  the  civilian.  So, 
long  before  full  citizenship  was  granted  to  the  whole 
Roman  world  (about  A.  D.  217),  it  is  clear  that  not  only 


36  ROMAN  AND  BRITISH  EMPIRES 

the  lower  posts  in  which  provincials  had  always  been 
employed,  but  the  highest  also  were  freely  open  to  all 
subjects.  A  Gaul  might  be  sent  to  govern  Cilicia,  or  a 
Thracian  Britain,  because  both  were  now  Romans  rather 
than  Gauls  or  Thracians.  The  fact  that  Latin  and  Greek 
were  practically  familiar  to  nearly  all  highly  educated 
civil  servants,  because  Latin  was  the  language  of  law  as 
well  as  the  tongue  commonly  spoken  in  the  West,  while 
Greek  was  the  language  of  philosophy  and  (to  a  great 
extent)  of  letters,  besides  being  the  spoken  tongue  of 
most  parts  of  the  East,  made  a  well-educated  man  fit  for 
public  employment  everywhere,  for  he  was  not  (except 
perhaps  in  Syria  and  Egypt  and  a  few  odd  corners  of 
the  Empire)  obliged  to  learn  any  fresh  language.  And 
a  provincial  was  just  as  likely  as  an  Italian  to  be  highly 
educated.  Thus  the  officials  could  easily  get  into  touch 
with  the  subjects,  and  felt  hardly  more  strange  if  they 
came  from  a  distance  than  a  Scotchman  feels  if  he  is 
appointed  to  a  professorship  in  Quebec,  or  an  Irish- 
man if  he  becomes  postmaster  in  a  Norfolk  village.  Noth- 
ing contributed  more  powerfully  to  the  unity  and  the 
strength  of  the  Roman  dominion  than  this  sense  of  an 
imperial  nationality. 

The  English  in  India  have,  as  did  the  Romans; 
always  employed  the  natives  in  subordinate  posts.  The 
enormous  majority  of  persons  who  carry  on  the  civil 
administration  there  at  this  moment  are  Asiatics.  But 
the  English,  unlike  the  Romans,  have  continued  to  re- 
serve the  higher  posts  for  men  of  European  stock.  The 
contrast  in  this  respect  between  the  Roman  and  the 
English  policy  is  instructive,  and  goes  down  to  the 
foundation  of  the  differences  between  English  and 
Roman  rule.  As  we  have  seen,  the  City  of  Rome 
became  the  Empire,  and  the  Empire  became  Rome. 
National  independence  was  not  regretted,  for  the  East 
had  been  denationalized  before  the  Italian  conqueror 
appeared,  and  the  tribes  of  the  West,  even  those 
who  fought  best  for  freedom,  had  not  reached  a  genuine 


ROMAN  AND  BRITISH  EMPIRES  37 

national  life  when  Spain,  Gaul,  and  Britain  were  brought 
under  the  yoke.  In  the  third  century  A.  D.  a  Gaul,  a 
Spaniard,  a  Pannonian,  a  Bithynian,  a  Syrian  called 
himself  a  Roman,  and  for  all  practical  purposes  was  a 
Roman.  The  interests  of  the  Empire  were  his  interests, 
its  glory  his  glory,  almost  as  much  as  if  he  had  been 
born  in  the  shadow  of  the  Capitol.  There  was,  there- 
fore, no  reason  why  his  loyalty  should  not  be  trusted, 
no  reason  why  he  should  not  be  chosen  to  lead  in  war, 
or  govern  in  peace,  men  of  Italian  birth.  So,  too,  the 
qualities  which  make  a  man  capable  of  leading  in  war 
or  administering  in  peace  were  just  as  likely  to  be 
found  in  a  Gaul,  or  a  Spaniard,  or  a  German  from  the 
Rhine  frontier  as  in  an  Italian.  In  fact,  men  of  Italian 
birth  play  no  great  part  in  later  imperial  history  l. 

It  is  far  otherwise  in  India,  though  there  was  among 
the  races  of  India  no  nation.  The  Englishman  does 
not  become  an  Indian,  nor  the  Indian  an  Englishman. 
The  Indian  does  not  as  a  rule,  though  of  course  there 
have  been  not  a  few  remarkable  exceptions  to  the  rule, 
possess  the  qualities  which  the  English  deem  to  be 
needed  for  leadership  in  war  or  for  the  higher  posts  of 
administration  in  peace  2.  For  several  reasons,  reasons 
to  be  referred  to  later,  he  can  seldom  be  expected  to  feel 
like  an  Englishman,  and  to  have  the  same  devotion  to 
the  interests  of  England  which  may  be  counted  on  in 
an  Englishman.  Accordingly  the  English  have  made 
in  India  arrangements  to  which  there  was  nothing  simi- 
lar in  the  Roman  Empire.  They  have  two  armies,  a 
native  and  a  European,  the  latter  of  which  is  never  suf- 
fered to  fall  below  a  certain  ratio  to  the  former.  The 
latter  is  composed  entirely  of  Englishmen.  In  the  for- 
mer all  military  posts  in  line  regiments  above  that  of 

1  After  the  fifth  century,  Armenians,  Isaurians,  and  Northern  Macedonians 
figure  more  largely  in  the  EastenrEmpire  than  do  natives  of  the  provinces  round 
the  Aegaean. 

9  Among  these  exceptions  may  be  mentioned  Sir  Syed  Ahmed  of  Aligurh,  and 
the  late  Mr.  Justice  Trimbak  Telang  of  Bombay,  both  men  of  remarkable  force 
and  elevation  of  character. 


38  ROMAN  AND   BRITISH  EMPIRES 

subahdar  (equivalent  to  captain)  are  reserved  to  English- 
men1. The  artillery  and  engineer  services  are  kept  in 
English  hands,  i.e.  there  is  hardly  any  native  artillery. 
It  is  only,  therefore,  in  the  native  contingents  already 
referred  to  that  natives  are  found  in  the  higher  grades. 
These  contingents  may  be  compared  with  the  auxiliary 
barbarian  troops  under  non-Roman  commanders  whom 
we  find  in  the  later  ages  of  Rome,  after  Constantine. 
Such  commanders  proved  sometimes,  like  the  Vandal 
Stilicho,  energetic  defenders  of  the  imperial  throne, 
sometimes,  like  the  Suevian  Ricimer,  formidable  men- 
aces to  it  2.  But  apart  from  these,  the  Romans  had  but 
one  army;  and  it  was  an  army  in  which  all  subjects  had 
an  equal  chance  of  rising. 

In  a  civil  career,  the  native  of  India  may  go  higher 
under  the  English  than  he  can  in  a  military  one.  A 
few  natives,  mostly  Hindus,  and  indeed  largely  Bengali 
Hindus,  have  won  their  way  into  the  civil  service  by 
passing  the  competitive  Indian  Civil  Service  examina- 
tion in  England,  and  some  of  these  have  risen  to  the 
posts  of  magistrate  and  district  judge.  A  fair  proportion 
of  the  seats  on  the  benches  of  the  Supreme  Courts 
in  Calcutta,  Madras,  Bombay,  Allahabad,  and  Lahore 
have  been  allotted  to  native  barristers  of  eminence, 
several  of  whom  have  shown  themselves  equal  in  point 
of  knowledge  and  capacity,  as  well  as  in  integrity,  to 
the  best  judges  selected  from  the  European  bar  in  India 
or  sent  out  from  the  English  bar.  No  native,  however, 
has  ever  been  thought  of  for  the  great  places,  such  as 
those  of  Lieutenant-Governor  or  Chief  Commissioner, 
although  all  British  subjects  are  legally  eligible  for  any 
post  in  the  service  of  the  Crown  in  any  part  of  the  British 
Dominions. 

1  The  subahdar,  however,  is  rather  a  non-commissioned  than  a  commissioned 
officer,  and  is  not  a  member  of  the  British  officers'  mess. 

2  Russia  places  Musulmans  from  the  Caucasian  provinces  in  high  military  posts. 
But  she  has  no  army  corresponding  to  the  native  army  in  India,  and  as  she  has  a 
number  of  Musulman  subjects  in  European  Russia  it  is  all  the  more  natural  for 
her  to  have  a  Colonel  Temirhan  Shipsheff  at  Aralykh  and  a  General  Alikhanoff 
at  Merv. 


ROMAN  A\D   BRITISH   AM/ /•//,'/•>  39 

Regarding  the  policy  of  this  exclusion  there  has  been 
much  difference  of  opinion.  As  a  rule,  Anglo-Indian 
officials  approve  the  course  which  I  have  described  as 
that  actually  taken.  But  I  know  some  who  think  that 
there  are  natives  of  ability  and  force  of  character  such 
as  to  fit  them  for  posts  military  as  well  as  civil,  higher 
than  any  to  which  a  native  has  yet  been  advanced,  and 
who  sees  advantages  in  selecting  a  few  for  such  posts. 
They  hold,  however,  that  such  natives  ought  to  be 
selected  for  civil  appointments,  not  by  competitive 
examination  in  England  but  in  India  itself  by  those 
who  rule  there,  and  in  respect  of  personal  merits  tested 
by  service.  Some  opposition  to  such  a  method  might 
be  expected  from  members  of  the  regular  civil  service, 
who  would  consider  their  prospects  of  promotion  to 
be  thereby  prejudiced. 

Here  we  touch  an  extremely  interesting  point  of  com- 
parison between  the  Roman  and  the  English  systems. 
Both  nations,  when  they  started  on  their  career  of  con- 
quest, had  already  built  up  at  home  elaborate  constitu- 
tional systems  in  which  the  rights  of  citizens,  both 
public  and  private  civil  rights,  had  been  carefully  settled 
and  determined.  What  was  the  working  of  these  rights 
in  the  conquered  territories  ?  How  far  were  they  ex- 
tended by  the  conquerors,  Roman  and  English,  and  with 
what  results  ? 

Rome  set  out  from  the  usual  practice  of  the  city  re- 
publics of  the  ancient  world.  No  man  enjoyed  any  rights 
at  all,  public  or  private,  except  a  citizen  of  the  Republic. 
A  stranger  coming  to  reside  in  the  city  did  not,  no  matter 
how  long  he  lived  there,  nor  did  his  son  or  grandson, 
obtain  those  rights  unless  he  was  specially  admitted  to 
become  a  citizen.  From  this  principle  Rome,  as  she  grew, 
presently  found  herself  obliged  to  deviate.  She  admitted 
one  set  of  neighbours  after  another,  sometimes  as  allies, 
sometimes  in  later  days,  as  conquered  and  incorporated 
communities,  to  a  citizenship  which  was  sometimes  in- 
complete, including  only  private  civil  rights,  sometimes 


40  ROMAN  AND  BRITISH  EMPIRES 

complete,  including  the  right  of  voting  in  the  assembly 
and  the  right  of  being  chosen  to  a  public  office.  Before 
the  dictatorship  of  Julius  Caesar  practically  all  Italians, 
except  the  people  of  Cisalpine  Gaul,  which  remained  a 
province  till  B.  c.  43,  had  been  admitted  to  civic  rights. 
Citizenship,  complete  or  partial  (i.e.  including  or  not 
including  public  rights)  had  also  begun  to  be  conferred 
on  a  certain  number  of  cities  or  individuals  outside  Italy. 
Tarsus  in  Cilicia,  of  which  St.  Paul  was  a  native,  enjoyed 
it,  so  he  was  born  a  Roman  citizen.  This  process  of  en- 
larging citizenship  went  on  with  accelerated  speed,  in 
and  after  the  days  of  the  Flavian  Emperors.  Under 
Hadrian,  the  whole  of  Spain  seems  to  have  enjoyed  civic 
rights.  Long  before  this  date  the  ancient  right  of  voting 
in  the  Roman  popular  Assembly  had  become  useless, 
but  the  other  advantages  attached  to  the  status  of  citizen 
were  worth  having,  for  they  secured  valuable  immunities. 
Finally,  early  in  the  third  century  A.  D.,  every  Roman 
subject  was  by  imperial  edict  made  a  citizen  for  all  pur- 
poses whatsoever.  Universal  eligibility  to  office  had, 
as  we  have  seen,  gone  ahead  of  this  extension,  for  all 
offices  lay  in  the  gift  of  the  Emperor  or  his  ministers ; 
and  when  it  was  desired  to  appoint  any  one  who  might 
not  be  a  full  citizen,  citizenship  was  conferred  along  with 
the  office.  Thus  Rome  at  last  extended  to  all  her  sub- 
jects the  rights  that  had  originally  been  confined  to  her 
own  small  and  exclusive  community. 

In  England  the  principle  that  all  private  civil  rights 
belong  to  every  subject  alike  was  very  soon  established, 
and  may  be  said  to  have  never  been  doubted  since  the 
final  extinction  of  serfdom  in  the  beginning  of  the  seven- 
teenth century.  Public  civil  rights,  however,  did  not 
necessarily  go  with  private.  Everybody,  it  is  true,  was 
(subject  to  certain  religious  restrictions  now  almost 
entirely  repealed)  eligible  to  any  office  to  which  he 
might  be  appointed  by  the  Crown,  and  was  also  (subject 
to  certain  property  qualifications  which  lasted  till  our 
own  time)  capable  of  being  chosen  to  fill  any  elective 


ROMAN  AND   BRITISH   EMPIRES  41 

post  or  function,  such  as  that  of  member  of  the  House 
of  Commons.  But  the  right  of  voting  did  not  neces- 
sarily go  along  with  other  rights,  whether  public  or 
private,  and  it  is  only  within  the  last  forty  years  that  it 
has  been  extended  by  a  series  of  statutes  to  the  bulk 
of  the  adult  male  population.  Now  when  Englishmen 
began  to  settle  abroad,  they  carried  with  them  all  their 
private  rights  as  citizens,  and  also  their  eligibility  to 
office ;  but  their  other  public  rights,  i.  c.  those  of  voting 
they  could  not  carry,  because  these  were  attached  to 
local  areas  in  England.  When  territories  outside  Eng- 
land were  conquered,  their  free  inhabitants,  in  becom- 
ing subjects  of  the  Crown,  became  therewith  entitled  to 
all  such  rights  of  British  subjects  as  were  not  connected 
with  residence  in  Britain :  that  is  to  say,  they  had  all  the 
private  civil  rights  of  Englishmen,  and  also  complete 
eligibility  to  public  office  (unless  of  course  some  special 
disqualification  was  imposed).  The  rights  of  an  English 
settler  in  Massachusetts  in  the  seventeenth  and  eigh- 
teenth centuries  were  those  of  an  Englishman,  except 
that  he  could  not  vote  at  an  English  parliamentary  elec- 
tion because  he  was  not  resident  in  any  English  constitu- 
ency ;  and  the  same  rule  became  applicable  to  a  French 
Canadian  after  the  cession  of  Canada  to  the  British 
Crown. 

So  when  India  was  conquered,  the  same  principles 
were  again  applied.  Every  free  Indian  subject  of  the 
Crown  soon  became  entitled  to  the  private  civil  rights 
of  an  Englishman,  except  so  far  as  his  own  personal 
law,  Hindu  or  Musulman  or  Parsi  or  Jain,  might  modify 
those  rights ;  and  if  there  was  any  such  modification, 
that  was  recognized  for  his  benefit  rather  than  to  his 
prejudice.  Thus  the  process  which  the  Romans  took 
centuries  to  complete  was  effected  almost  at  once  in 
India  by  the  application  of  long  established  doctrines  of 
English  law.  Accordingly  we  have  in  India  the  singular 
result  that  although  there  are  in  that  country  no  free 
institutions  (other  than  those  municipal  ones  previously 


42  ROMAN  AND  BRITISH  EMPIRES 

referred  to)  nor  any  representative  government,  every 
Indian  subject  is  eligible  to  any  office  in  the  gift  of  the 
Crown  anywhere,  and  to  any  post  or  function  to  which 
any  body  of  electors  may  select  him.  He  may  be  chosen 
by  a  British  constituency  a  member  of  the  British  House 
of  Commons,  or  by  a  Canadian  constituency  a  member 
of  the  House  of  Commons  of  Canada.  Two  natives  of 
India  (both  Parsis)  have  already  been  chosen,  both  by 
London  constituencies,  to  sit  in  the  British  House.  So 
a  native  Hindu  or  Musulman  might  be  appointed  by  the 
Crown  to  be  Lord  Chief  Justice  of  England  or  Governor- 
General  of  Canada  or  Australia.  He  might  be  created  a 
peer.  He  might  become  Prime  Minister.  And  as  far  as 
legal  eligibility  goes,  he  might  be  named  Governor- 
General  of  India,  though  as  a  matter  of  practice,  no 
Indian  has  ever  been  placed  in  any  high  Indian  office. 
Neither  birth,  nor  colour,  nor  religion  constitutes  any 
legal  disqualification.  This  was  expressly  declared  as 
regards  India  by  the  India  Act  of  1833,  and  has  been 
more  than  once  formally  declared  since,  but  it  did  not 
require  any  statute  to  establish  what  flowed  from  the 
principles  of  our  law.  And  it  need  hardly  be  added  that 
the  same  principles  apply  to  the  Chinese  subjects  of  the 
Crown  in  Hong  Kong  or  Singapore  and  to  the  negro 
subjects  of  the  Crown  in  Jamaica  or  Zululand.  In  this 
respect  at  least  England  has  \worthily  repeated  the  liberal 
policy  of  Rome.  She  has  done  it,  however,  not  by  way  of 
special  grants,  but  by  the  automatic  and  probably  uncon- 
templated operation  of  the  general  principles  of  her  law. 

As  I  have  referred  to  the  influence  of  English  con- 
stitutional ideas,  it  is  worth  noting  that  it  is  these  ideas 
which  have  led  the  English  of  late  years  not  only  to 
create  in  India  city  municipalities,  things  entirely  foreign 
to  the  native  Indian  mind,  but  also  to  provide  by  statute 
(in  1892)  for  the  admission  of  a  certain  number  of  nomi- 
nated non-official  members  to  the  legislative  councils  of 
the  Governors  in  Bengal,  Bombay,  Madras,  the  North- 
West  Provinces  and  Oudh,  and  the  Punjab.  These 


ROMAN  AND  BRITISH   EMPIRES  43 

members  are  nominated,  not  elected,  because  it  has  been 
found  difficult  to  devise  a  satisfactory  scheme  of  election. 
But  the  provision  made  for  the  presence  of  native  non- 
officials  testifies  to  the  wish  of  the  English  Govern- 
ment to  secure  not  only  a  certain  amount  of  outside 
opinion,  but  also  a  certain  number  of  native  councillors 
through  whom  native  sentiment  may  be  represented, 
and  may  obtain  its  due  influence  on  the  conduct  of 
affairs. 

The  extension  of  the  civil  rights  of  Englishmen  to  the 
subjects  of  the  Crown  in  India  would  have  been  any- 
thing but  a  boon  had  it  meant  the  suppression  and 
extinction  of  native  law  and  custom.  This  of  course  it 
has  not  meant.  Neither  had  the  extension  of  Roman 
conquest  such  an  effect  in  the  Roman  Empire ;  and 
even  the  grant  of  citizenship  to  all  subjects  did  not 
quite  efface  local  law  and  usage.  As  the  position  and 
influence  of  English  law  in  India,  viewed  in  comparison 
with  the  relation  of  the  older  Roman  law  to  the  Roman 
provinces,  is  the  subject  of  another  of  these  Essays, 
I  will  here  pass  over  the  legal  side  of  the  matter,  and 
speak  only  of  the  parallel  to  be  noted  between  the  poli- 
tical action  of  the  conquering  nations  in  both  cases. 

Both  have  shown  a  prudent  wish  to  avoid  disturbing, 
any  further  than  the  fixed  principles  of  their  policy  made 
needful,  the  usages  and  beliefs  of  their  subjects.  The 
Romans  took  over  the  social  and  political  system  which 
they  found  in  each  of  the  very  dissimilar  regions  they 
conquered,  placed  their  own  officials  above  it,  modified 
it  so  far  as  they  found  expedient  for  purposes  of  revenue 
and  civil  administration  generally,  but  otherwise  let  it 
stand  as  they  found  it  and  left  the  people  alone.  In 
course  of  time  the  law  and  administration  of  the  con- 
querors, and  the  intellectual  influences  which  literature 
called  into  play,  did  bring  about  a  considerable  measure 
of  assimilation  between  Romans  and  provincials,  espe- 
cially in  the  life  and  ideas  of  the  upper  classes.  But 
this  was  the  result  of  natural  causes.  The  Romans  did 


44  ROMAN  AND  BRITISH  EMPIRES 

not  consciously  and  deliberately  work  for  uniformity. 
Especially  in  the  sphere  of  religion  they  abstained  from 
all  interference.  They  had  indeed  no  temptation  to  inter- 
fere either  with  religious  belief  or  with  religious  prac- 
tice, for  their  own  system  was  not  a  universal  but  a 
strictly  national  religion,  and  the  educated  classes  had 
begun  to  sit  rather  loose  to  that  religion  before  the 
process  of  foreign  conquest  had  gone  far.  According 
to  the  theory  of  the  ancient  world,  every  nation  had 
its  own  deities,  and  all  these  deities  were  equally  to 
be  respected  in  their  own  country.  Whether  they  were 
at  bottom  the  same  deities  under  different  names,  or 
were  quite  independent  divine  powers,  did  not  matter. 
Each  nation  and  each  member  of  a  nation  was  expected 
to  worship  the  national  gods :  but  so  long  as  an  indi- 
vidual man  did  not  openly  reject  or  insult  those  gods, 
he  might  if  he  pleased  worship  a  god  belonging  to 
some  other  country,  provided  that  the  worship  was  not 
conducted  with  shocking  or  demoralizing  rites,  such  as 
led  to  the  prohibition  of  the  Bacchanalian  cult  at  Rome  *. 
The  Egyptian  Serapis  was  a  fashionable  deity  among 
Roman  women  as  early  as  the  time  of  Catullus.  We 
are  told  that  Claudius  abolished  Druidism  on  account 
of  its  savage  cruelty,  but  this  may  mean  no  more  than 
that  he  forbade  the  Druidic  practice  of  human  sacrifices2. 
There  was  therefore,  speaking  broadly,  no  religious 
persecution  and  little  religious  intolerance  in  the  ancient 
world,  for  the  Christians,  it  need  hardly  be  said,  were 
persecuted  not  because  of  their  religion  but  because 
they  were  a  secret  society,  about  which,  since  it  was  new, 
and  secret,  and  Oriental,  and  rejected  all  the  gods  of 
all  the  nations  alike,  the  wildest  calumnies  were  readily 
believed.  The  first  religious  persecutors  were  the  Persian 
Fire-worshipping  kings  of  the  Sassanid  dynasty,  who 
occasionally  worried  their  Christian  subjects. 

1  Constantine  prohibited  the  immoral  excesses  practised  by  the  Syrians  of  Heli- 
opolis. 

a  '  Druidarum  religionem  apud  Gallos  dirae  immanitatis  et  tantum  civibus  sub 
Augusto  interdictam  penitus  abolevit.' — Sueton,  Vita  Claud,  c.  25. 


ROMAN  AND  BRITISH  EMPIRES  45 

Neither,  broadly  speaking,  was  religious  propagan- 
dism  known  to  the  ancient  world.  There  were  no  mis- 
sions, neither  foreign  missions  nor  home  missions.  If  a 
man  did  not  sacrifice  to  the  gods  of  his  own  country,  his 
fellow  citizens  might  think  ill  of  him.  If  he  was  accused 
of  teaching  that  the  gods  did  not  exist,  he  might  possibly, 
like  Socrates,  be  put  to  death,  but  nobody  preached 
to  him.  On  the  other  hand,  if  he  did  worship  them, 
he  was  in  the  right  path,  and  it  would  have  been  deemed 
not  only  impertinent,  but  almost  impious,  for  the  native 
of  another  country  to  seek  to  convert  him  to  another 
faith,  that  is  to  say,  to  make  him  disloyal  to  the  gods 
of  his  own  country,  who  were  its  natural  and  time- 
honoured  protectors.  The  only  occasions  on  which  one 
hears  of  people  being  required  to  perform  acts  of  wor- 
ship to  any  power  but  the  deities  of  their  country  are 
those  cases  in  which  travellers  were  expected  to  offer 
a  prayer  or  a  sacrifice  to  some  local  deity  whose  terri- 
tory they  were  traversing,  and  whom  it  was  therefore 
expedient  to  propitiate,  and  those  other  cases  in  which 
a  sort  of  worship  was  required  to  be  rendered  to  the 
monarch,  or  the  special  protecting  deity  of  the  monarch, 
under  whose  sway  they  lived.  The  edict  attributed  to 
Nebuchadnezzar  in  the  book  of  Daniel  may  in  this  con- 
nexion be  compared  with  the  practice  in  the  Roman 
Empire  of  adoring  the  spirit  that  watched  over  the 
reigning  Caesar.  To  burn  incense  on  the  altar  of  the 
Genius  of  the  Emperor  was  the  test  commonly  proposed 
to  the  persons  accused  of  being  Christians. 

All  this  is  the  natural  result  of  polytheism.  With  the 
coming  of  faiths  each  of  which  claims  to  be  exclusively 
and  universally  true,  the  face  of  the  world  was  changed. 
Christianity  was  necessarily  a  missionary  religion,  and 
unfortunately  soon  became  also,  forgetting  the  precepts 
of  its  Founder,  a  persecuting  religion.  Islam  followed 
in  the  same  path,  and  for  similar  reasons.  In  India 
the  strife  of  Buddhism  with  Hinduism  gave  rise  to 
ferocious  persecutions,  which  however  were  perhaps  as 


46  ROMAN  AND  BRITISH  EMPIRES 

much  political  as  religious.  When  the  Portuguese  and 
Spaniards  began  to  discover  and  conquer  new  countries 
beyond  the  oceans,  the  spread  of  religion  was  in  the 
mouths  of  all  the  adventurers,  and  in  the  minds  of  many 
of  the  baser  as  well  as  of  the  better  sort.  Spain  accord- 
ingly forced  her  faith  upon  all  her  subjects,  and  found 
no  great  resistance  from  the  American  peoples,  though 
of  course  their  Christianity  seldom  went  deep,  as  in- 
deed it  remains  to-day  in  many  parts  of  Central  and 
South.America,  a  thin  veneer  over  the  ancient  supersti- 
tions of  the  aborigines.  Portugal  did  the  like,  so  far  as 
she  could,  in  India  and  in  Africa.  So  too  the  decrees 
by  which  the  French  colonizing  companies  were  founded 
in  the  days  of  Richelieu  provided  that  the  Roman  Catho- 
lic faith  was  to  be  everywhere  made  compulsory,  and  that 
converted  pagans  were  to  be  admitted  to  the  full  civil 
rights  of  Frenchmen1.  But  when  the  English  set  forth 
to  trade  and  conquer  they  were  not  thinking  of  religion. 
The  middle  of  the  eighteenth  century,  when  Bengal  and 
Madras  were  acquired,  was  for  England  an  age  when 
persecution  had  died  out  and  missionary  propagandism 
had  scarcely  begun.  The  East  India  Company  did  not 
at  first  interfere  in  any  way  with  the  religious  rites  it 
found  practised  by  the  people,  however  cruel  or  immoral 
they  might  be.  It  gave  no  advantages  to  Christian  con- 
verts, and  for  a  good  while  it  even  discouraged  the  pre- 
sence of  missionaries,  lest  they  should  provoke  dis- 
turbances. Bishops  were  thought  less  dangerous,  and 
one  was  appointed,  with  three  Archdeacons  under  him, 
by  the  Act  of  1813.  A  sort  of  miniature  church  establish- 
ment, for  the  benefit  of  Europeans,  still  exists  and  is  sup- 
ported out  of  Indian  revenues.  After  a  time,  however, 
some  of  the  more  offensive  or  harmful  features  of  native 
worship  began  to  be  forbidden.  The  human  sacrifices 
that  occasionally  occurred  among  the  hill  tribes  were 
treated  as  murders,  and  the  practice  of  Sutti — the 
self-immolation  of  the  Hindu  widow  on  her  husband's 

i  I  owe  this  fact  to  Sir  A.  C.  Lyall  (op.  cit.  p.  66). 


ROMAN  AND   BRITISH  EMPIRES  47 

funeral  pyre — was  forbidden  as  far  back  as  1829.  No 
hindrance  is  now  thrown  in  the  way  of  Christian  mis- 
sions :  and  there  is  perfect  equality;,  as  respects  civil 
rights  and  privileges,  not  only  between  the  native 
votaries  of  all  religions,  but  also  between  them  and 
Europeans. 

So  far  as  religion  properly  so-called  is  concerned, 
the  policy  of  the  English  is  simple  and  easy  to  apply. 
But  as  respects  usages  which  are  more  or  less  associated 
with  religion  in  the  native  mind,  but  which  European 
sentiment  disapproves,  difficulties  sometimes  arise.  The 
burning  of  the  widow  was  one  of  these  usages,  and  has 
been  dealt  with  at  the  risk  of  offending  Hindu  prejudice. 
Infanticide  is  another;  and  the  British  Government  try 
to  check  it,  even  in  some  of  the  protected  States.  The 
marriage  of  young  children  is  a  third:  and  this  it  has 
been  thought  not  yet  prudent  to  forbid,  although  the  best 
native  opinion  is  beginning  to  recognize  the  evils  that 
attach  to  it.  Speaking  generally,  it  may  be  said  that  the 
English  have,  like  the  Romans  but  unlike  the  Spaniards, 
shown  their  desire  to  respect  the  customs  and  ideas  of 
the  conquered  peoples.  Indifferentism  has  served  them 
in  their  career  of  conquest  as  well  as  religious  eclecticism 
served  the  Romans,  so  that  religious  sentiment,  though 
it  sometimes  stimulated  the  valour  of  their  native  ene- 
mies, has  not  really  furnished  any  obstacle  to  the  pacifica- 
tion of  a  conquered  people.  The  English  have,  however, 
gone  further  than  did  the  Romans  in  trying  to  deter  their 
subjects  from  practices  socially  or  morally  deleterious. 

As  regards  the  work  done  by  the  English  for  educa- 
tion in  the  establishment  of  schools  and  Universities, 
no  comparison  with  Rome  can  usefully  be  drawn: 
because  it  was  not  deemed  in  the  ancient  world  to  be 
the  function  of  the  State  to  make  a  general  educational 
provision  for  its  subjects.  The  Emperors,  however, 
appointed  and  paid  teachers  of  the  liberal  arts  in  some 
of  the  greater  cities.  That  which  the  English  have 
done,  however,  small  as  it  may  appear  in  comparison 


48  ROMAN  AND  BRITISH  EMPIRES 

with  the  vast  population  they  have  to  care  for1,  witnesses 
to  the  spirit  which  has  animated  them  in  seeking  to 
extend  to  the  conquered  the  opportunities  of  progress 
which  they  value  for  themselves. 

The  question  how  far  the  triumphs  of  Rome  and  of 
England  are  due  to  the  republican  polity  of  the  one, 
and  the  practically  republican  (though  not  until  1867 
or  1885  democratic)  polity  of  the  other,  is  so  large 
a  one  that  I  must  be  content  merely  to  indicate  it  as 
well  deserving  a  discussion.  Several  similar  empires 
have  been  built  up  by  republican  governments  of  the 
oligarchic  type,  as  witness  the  empire  of  Carthage  in 
the  ancient,  and  that  of  Venice  in  the  later  mediaeval 
world.  One  can  explain  this  by  the  fact  that  in  such 
governments  there  is  usually,  along  with  a  continuity  of 
policy  hardly  to  be  expected  from  a  democracy,  a  con- 
stant succession  of  capable  generals  and  administrators 
such  as  a  despotic  hereditary  monarchy  seldom  provides, 
for  a  monarchy  of  that  kind  must  from  time  to  time 
have  feeble  or  dissolute  sovereigns,  under  whom  bad 
selections  will  be  made  for  important  posts,  policy  will 
oscillate,  and  no  adequate  support  will  be  given  to  the 
armies  or  fleets  which  are  maintaining  the  interests  of 
the  nation  abroad.  A  republic  is  moreover  likely  to 
have  a  larger  stock  of  capable  and  experienced  men  on 
which  to  draw  during  the  process  of  conquering  and 
organizing.  The  two  conspicuous  instances  in  which 
monarchies  have  acquired  and  long  held  vast  external 
dominions  are  the  Empires  of  Spain  and  Russia.  The 
former  case  is  hardly  an  exception  to  the  doctrine  just 
stated,  because  the  oceanic  Empire  of  Spain  was  won 
quickly  and  with  little  righting  against  opponents  im- 
measurably inferior,  and  because  it  had  no  contermi- 
nous enemies  to  take  advantage  of  the  internal  decay 
which  soon  set  in.  In  the  case  of  Russia  the  process 

1  There  are  in  India  five  examining  and  degree-granting  Universities,  with 
about  8,000  matriculated  students,  nearly  all  of  them  taught  in  the  numerous  af- 
filiated colleges.  The  total  number  of  persons  returned  as  receiving  instruction  in 
India  is  4,357,000,  of  whom  402,000  are  girls. 


ROMAN  AND   BRITISH  EMPIRES  49 

has  been  largely  one  of  natural  expansion  over  re- 
gions so  thinly  peopled  and  with  inhabitants  so  back- 
ward that  no  serious  resistance  was  made  to  an  advance 
which  went  on  rather  by  settlement  than  by  conquest. 
It  is  only  in  the  Caucasus  and  in  Turkistan  that  Russia 
has  had  to  establish  her  power  by  fighting.  Her  con- 
flicts even  with  the  Persians  and  the  Ottoman  Turks 
have  been,  as  Moltke  is  reported  to  have  said,  battles  of 
the  one-eyed  against  the  blind.  But  it  must  be  added 
that  Russia  has  shown  during  two  centuries  a  remark- 
able power  of  holding  a  steady  course  of  foreign  policy. 
She  sometimes  trims  her  sails,  and  lays  the  ship  upon 
the  other  tack,  but  the  main  direction  of  the  vessel's 
course  is  not  altered.  This  must  be  the  result  of  wisdom 
or  good  fortune  in  the  choice  of  ministers,  for  the 
Romanoff  dynasty  has  not  contained  more  than  its  fair 
average  of  men  of  governing  capacity. 

There  is  one  other  point  in  which  the  Romans  and 
the  English  may  be  compared  as  conquering  powers. 
Both  triumphed  by  force  of  character.  During  the  two 
centuries  that  elapsed  between  the  destruction  of  Car- 
thage, when  Rome  had  already  come  to  rule  many  pro- 
vinces, and  the  time  of  Vespasian,  when  she  had  ceased  to 
be  a  city,and  was  passinginto  a  nation  conterminous  with 
her  dominions,  the  Romans  were  the  ruling  race  of  the 
world,  small  in  numbers,  even  if  we  count  the  peoples  of 
middle  Italy  as  Romans,  but  gifted  with  such  talents  for 
war  and  government,  and  possessed  of  such  courage 
and  force  of  will  as  to  be  able,  not  only  to  dominate  the 
whole  civilized  world  and  hold  down  its  peoples,  but 
also  to  carry  on  a  succession  of  bloody  civil  wars  among 
themselves  without  giving  those  peoples  any  chance  of 
recovering  their  freedom.  The  Roman  armies,  though 
superior  in  discipline  to  the  enemies  they  had  to  encoun- 
ter, except  the  Macedonians  and  Greeks,  were  not  gene- 
rally superior  in  arms,  and  had  no  resources  of  superior 
scientific  knowledge  at  their  command.  Their  adver- 
saries in  Africa,  in  Greece,  and  in  Asia  Minor  were  as  far 
4 


50  ROMAN  AND   BRITISH  EMPIRES 

advanced  in  material  civilization  as  they  were  them- 
selves. It  was  their  strenuous  and  indomitable  will, 
buoyed  up  by  the  pride  and  self-confidence  born  of  a  long 
succession  of  victories  in  the  past,  that  enabled  them  to 
achieve  this  unparalleled  triumph.  The  triumph  was  a 
triumph  of  character,  as  their  poet  felt  when  he  penned 
the  famous  line,  Moribus  antiquis  stat  res  Romano,  mrisque. 
And  after  the  inhabitants  of  the  City  had  ceased  to  be 
the  heart  of  the  Empire,  this  consciousness  of  great- 
ness passed  to  the  whole  population  of  the  Roman 
world  when  they  compared  themselves  with  the  bar- 
barians outside  their  frontiers.  One  finds  it  even  in 
the  pages  of  Procopius,  a  Syrian  writing  in  Greek, 
after  the  western  half  of  the  Empire  had  been  dismem- 
bered by  barbarian  invasions. 

The  English  conquered  India  with  forces  much 
smaller  than  those  of  the  Romans ;  and  their  success 
in  subjugating  a  still  vaster  population  in  a  shorter 
time  may  thus  appear  more  brilliant.  But  the  Eng- 
lish had  antagonists  immeasurably  inferior  in  valour,  in 
discipline,  in  military  science,  and  generally  also  in  the 
material  of  war,  to  those  whom  the  Romans  overcame. 
Nor  had  they  ever  either  a  first-rate  general  or  a  monarch 
of  persistent  energy  opposed  to  them.  No  Hannibal, 
nor  even  a  Mithradates,  appeared  to  bar  their  path. 
Hyder  Ali  had  no  nation  behind  him;  and  fortune 
spared  them  an  encounter  with  the  Afghan  Ahmed 
Shah  and  the  Sikh  Ranjit  Singh.  Their  most  formid- 
able opponents  might  rather  be  compared  with  the 
gallant  but  untrained  Celtic  Vercingetorix,  or  the 
showy  but  incompetent  Antiochus  the  Great.  It  was 
only  when  Europeans  like  Dupleix  came  upon  the  scene 
that  they  had  men  of  their  own  kind  to  grapple  with; 
and  Dupleix  had  not  the  support  from  home  which 
Clive  could  count  on  in  case  of  dire  necessity.  Still  the 
conquest  of  India  was  a  splendid  achievement,  more 
striking  and  more  difficult,  if  less  romantic,  than  the 
conquest  of  Mexico  by  Hernan  Cortez  or  the  conquest  of 


ROMAN  AND  BRITISH   EMPIRES  51 

Peru  by  Francisco  Pizarro,  though  it  must  be  admitted 
that  the  courage  of  these  two  adventurers  in  venturing 
far  into  unknown  regions  with  a  handful  of  followers  has 
never  been  surpassed.  Among  the  English,  as  among 
the  Romans,  the  sense  of  personal  force,  the  conscious 
ascendency  of  a  race  so  often  already  victorious,  with 
centuries  of  fame  behind  them,  and  a  contempt  for 
the  feebler  folk  against  whom  they  were  contending, 
were  the  main  source  of  that  dash  and  energy  and 
readiness  to  face  any  odds  which  bore  down  all  resis- 
tance. These  qualities  have  lasted  into  our  own  time. 
No  more  brilliant  examples  were  ever  given  of  them 
than  in  the  defence  of  the  Fort  at  Lucknow  and  in  the 
siege  of  Delhi  at  the  time  of  the  Indian  Mutiny  of 
1857-8.  And  it  is  worth  noting  that  almost  the  only 
disasters  that  have  ever  befallen  the  British  arms  have 
occurred  where  the  general  in  command  was  either 
incompetent,  as  must  sometimes  happen  in  every  army, 
or  was  wanting  in  boldness.  In  the  East,  more  than 
anywhere  else,  confidence  makes  for  victory,  and  one 
victory  leads  on  to  another. 

It  is  by  these  qualities  that  the  English  continue  to 
hold  India.  In  the  higher  grades  of  the  civil  adminis- 
tration which  they  fill  there  are  only  about  one  thousand 
persons :  and  these  one  thousand  control  two  hundred 
and  eighty-seven  millions,  doing  it  with  so  little  friction 
that  they  have  ceased  to  be  surprised  at  this  extraor- 
dinary fact.  The  English  have  impressed  the  imagina- 
tion of  the  people  by  their  resistless  energy  and  their 
almost  uniform  success.  Their  domination  seems  to 
have  about  it  an  element  of  the  supernatural,  for  the 
masses  of  India  are  still  in  that  mental  condition  which 
looks  to  the  supernatural  for  an  explanation  of  whatever 
astonishes  it.  The  British  Raj  fills  them  with  a  sense  of 
awe  and  mystery.  That  nearly  three  hundred  millions 
of  men  should  be  ruled  by  a  few  palefaced  strangers 
from  beyond  the  great  and  wide  sea,  strangers  who  all 
obey  some  distant  power,  and  who  never,  like  the 


52  ROMAN  AND   BRITISH  EMPIRES 

lieutenants  of  Oriental  sovereigns,  try  to  revolt  for  their 
own  benefit — this  seems  too  wonderful  to  be  anything 
but  the  doing  of  some  unseen  and  irresistible  divinity. 
I  heard  at  Lahore  an  anecdote  which,  slight  as  it  is, 
illustrates  the  way  in  which  the  native  thinks  of  these 
things.  A  tiger  had  escaped  from  the  Zoological  Gar- 
dens, and  its  keeper,  hoping  to  lure  it  back,  followed 
it.  When  all  other  inducements  had  failed,  he  lifted 
up  his  voice  and  solemnly  adjured  it  in  the  name  of 
the  British  Government,  to  which  it  belonged,  to  come 
back  to  its  cage.  The  tiger  obeyed. 

Now  that  we  have  rapidly  surveyed  the  more  salient 
points  of  resemblance  or  analogy  between  these  two 
empires,  it  remains  to  note  the  capital  differences  be- 
tween them,  one  or  two  of  which  have  been  already 
incidentally  mentioned.  On  the  most  obvious  of  all 
I  have  already  dwelt.  It  is  the  fact  that,  whereas  the 
Romans  conquered  right  out  from  their  City  in  all 
directions — south,  north,  west,  and  east — so  that  the 
capital,  during  the  five  centuries  from  B.  c.  200  (end  of 
the  Second  Punic  War)  to  A.  D.  325  (foundation  of  Con- 
stantinople), stood  not  far  from  the  centre  of  their  domi- 
nions, England  has  conquered  India  across  the  ocean, 
and  remains  many  thousands  of  miles  from  the  nearest 
point  of  her  Indian  territory.  Another  not  less  obvious 
difference  is  perhaps  less  important  than  it  seems. 
Rome  was  a  city,  and  Britain  is  a  country.  Rome,  when 
she  stepped  outside  Italy  to  establish  in  Sicily  her  first 
province,  had  a  free  population  of  possibly  only  seventy 
or  eighty  thousand  souls.  Britain,  when  she  began  her 
career  of  conquest  at  Plassy,  had  (if  we  include  Ireland, 
then  still  a  distinct  kingdom,  but  then  less  a  source  of 
weakness  than  she  has  sometimes  since  been)  a  popula- 
tion of  at  least  eleven  or  twelve  millions.  But,  apart  from 
the  fact  that  the  distance  from  Britain  to  India  round  the 
Cape  made  her  larger  population  less  available  for  action 
in  India  than  was  the  smaller  population  of  Rome  for 
action  in  the  Mediterranean,  the  comparison  must  not 


ROMAN  AND   BRITISH   EMPIRES  53 

really  be  made  with  Rome  as  a  city,  but  with  Rome  as 
the  centre  of  a  large  Italian  population,  upon  which 
she  drew  for  her  armies,  and  the  bulk  of  which  had, 
before  the  end  of  the  Republic,  become  her  citizens. 
On  this  point  of  dissimilarity  no  more  need  be  said, 
because  its  significance  is  apparent.  I  turn  from  it  to 
another  of  greater  consequence. 

The  relations  of  the  conquering  country  to  the  con- 
quered country,  and  of  the  conquering  race  to  the 
conquered  races,  are  totally  different  in  the  two  cases 
compared.  In  the  case  of  Rome  there  was  a  similarity 
of  conditions  which  pointed  to  and  ultimately  effected 
a  fusion  of  the  peoples.  In  the  case  of  England  there 
is  a  dissimilarity  which  makes  the  fusion  of  her  people 
with  the  peoples  of  India  impossible. 

Climate  offers  the  first  point  of  contrast.  Rome,  to 
be  sure,  ruled  countries  some  of  which  were  far  hotter 
and  others  far  colder  than  was  the  valley  of  the  Tiber. 
Doubtless  the  officer  who  was  stationed  in  Nubia  com- 
plained of  the  torrid  summer,  much  as  an  English 
officer  complains  of  Quetta  or  Multan;  nor  were  the 
winters  of  Ardoch  or  Hexham  agreeable  to  a  soldier 
from  Apulia.  But  if  the  Roman  married  in  Nubia,  he 
could  bring  up  his  family  there.  An  English  officer 
cannot  do  this  at  Quetta  or  Multan.  The  English  race 
becomes  so  enfeebled  in  the  second  generation  by  liv- 
ing without  respite  under  the  Indian  sun  that  it  would 
probably  die  out,  at  least  in  the  plains,  in  the  third 
or  fourth.  Few  Englishmen  feel  disposed  to  make 
India  their  home,  if  only  because  the  physical  condi- 
tions of  life  there  are  so  different  from  those  under 
which  their  earlier  years  were  passed.  But  the  Italian 
could  make  himself  at  home,  so  far  as  natural  condi- 
tions went,  almost  anywhere  from  the  Dnieper  to  the 
Guadalquivir. 

The  second  contrast  is  in  the  colour  of  the  races. 
All  the  races  of  India  are  dark,  though  individuals  may 
be  found  among  high-caste  Brahmins  and  among  the 


54  ROMAN  AND  BRITISH  EMPIRES 

Parsis  of  Poona  or  Gujarat  who  are  as  light  in  hue  as 
many  Englishmen.  Now  to  the  Teutonic  peoples,  and 
especially  to  the  English  and  Anglo-Americans,  the 
difference  of  colour  means  a  great  deal.  It  creates  a 
feeling  of  separation,  perhaps  even  of  a  slight  repul- 
sion. Such  a  feeling  may  be  deemed  unreasonable 
or  unchristian,  but  it  seems  too  deeply  rooted  to  be 
effaceable  in  any  time  we  can  foresee.  It  is,  to  be 
sure,  not  nearly  so  strong  towards  members  of  the 
more  civilized  races  of  India,  with  their  faces  often  full 
of  an  intelligence  and  refinement  which  witnesses  to 
many  generations  of  mental  culture,  as  it  is  in  North 
America  towards  the  negroes  of  the  Gulf  Coast,  or  in 
South  Africa  towards  the  Kafirs.  Yet  it  is  sufficient  to 
be,  as  a  rule,  a  bar  to  social  intimacy,  and  a  complete 
bar  to  intermarriage. 

Among  the  highest  castes  of  Hindus  and  among  the 
most  ancient  princely  families,  such  as  those  famous 
Rajput  dynasties  whose  lineage  runs  back  further  than 
does  that  of  any  of  the  royal  houses  of  Europe,  there  is 
a  corresponding  pride  of  race  quite  as  strong  as  that 
felt  by  the  best-born  European.  So,  too,  some  of  the 
oldest  Musulman  families,  tracing  their  origin  to  the 
relatives  of  the  Prophet  himself,  are  in  respect  of  long 
descent  equal  to  any  European  houses.  Nevertheless, 
although  the  more  educated  and  tactful  among  the 
English  pay  due  honour  to  these  families,  colour  would 
form  an  insurmountable  barrier  to  intermarriage,  even 
were  the  pride  of  the  Rajputs  disposed  to  invite  it. 
The  oldest  of  the  Rajput  dynasties,  that  of  Udaipur, 
always  refused  to  give  a  daughter  in  marriage  even 
to  the  Mogul  Emperors. 

There  was  no  severing  line  like  this  in  the  ancient 
world.  The  only  dark  races  (other  than  the  Egyptians) 
with  whom  the  Romans  came  in  contact  were  some 
of  the  Numidian  tribes,  few  of  whom  became  really 
Romanized,  and  the  Nubians  of  the  Middle  Nile,  also 
scarcely  within  the  pale  of  civilization.  The  question, 


ROMAN  AND   BRITISH   EMPIRES  55 

therefore,  did  not  arise  in  the  form  it  has  taken  in  India. 
Probably,  however,  the  Romans  would  have  felt  and 
acted  not  like  Teutons,  but  rather  as  the  Spanish  and 
Portuguese  have  done.  Difference  of  colour  does  not 
repel  members  of  these  last-named  nations.  Among 
them,  unions,  that  is  to  say  legitimate  unions,  of  whites 
with  dark-skinned  people,  are  not  uncommon,  nor  is  the 
mulatto  or  quadroon  offspring  kept  apart  and  looked 
down  upon  as  he  is  among  the  Anglo-Americans. 
Nothing  contributed  more  to  the  fusion  of  the  races 
and  nationalities  that  composed  the  Roman  Empire 
than  the  absence  of  any  physical  and  conspicuous 
distinctions  between  those  races,  just  as  nothing  did 
more  to  mitigate  the  horrors  of  slavery  than  the  fact 
that  the  slave  was  usually  of  a  tint  and  type  of  features 
not  markedly  unlike  those  of  his  master.  Before  the 
end  of  the  Republic  there  were  many  freedmen  in  the 
Senate,  though  their  presence  there  was  regarded  as 
a  sign  of  declension.  The  son  of  a  freedman  passed 
naturally  and  easily — as  did  the  poet  Horace — into  the 
best  society  of  Rome  when  his  personal  merits  or  the 
favour  of  a  great  patron  gave  him  entrance,  though  his 
detractors  found  pleasure  in  reminding  one  another  of 
his  origin.  In  India  it  is  otherwise.  Slavery,  which 
was  never  harsh  there,  has  fortunately  not  come  into 
the  matter,  in  the  way  it  did  in  the  Southern  States 
of  America  and  in  South  Africa.  But  the  population 
is  sharply  divided  into  whites  and  natives.  The  so- 
called  Eurasians,  a  mixed  race  due  to  the  unions  of 
whites  with  persons  of  Indian  race,  give  their  sym- 
pathies to  the  whites,  but  are  treated  by  the  latter  as 
an  inferior  class.  They  are  not  numerous  enough  to 
be  an  important  factor,  nor  do  they  bridge  over  the 
chasm  which  divides  the  rulers  from  the  ruled.  It  is 
not  of  the  want  of  political  liberty  that  the  latter  com- 
plain, for  political  liberty  has  never  been  enjoyed  in 
the  East,  and  would  not  have  been  dreamt  of  had  not 
English  literature  and  English  college  teaching  im- 


56  ROMAN  AND  BRITISH   EMPIRES 

planted  the  idea  in  the  minds  of  the  educated  natives. 
But  the  hauteur  of  the  English  and  the  sense  of  social 
incompatibility  which  both  elements  feel,  are  unfortu- 
nate features  in  the  situation,  and  have  been  so  from 
the  first.  Even  in  1813  the  representatives  of  the  East 
India  Company  stated  to  a  committee  of  the  House  of 
Commons  that  '  Englishmen  of  classes  not  under  the 
observation  of  the  supreme  authorities  were  notorious 
for  the  contempt  with  which,  in  their  ignorance  and 
arrogance,  they  contemplated  the  usages  and  institu- 
tions of  the  natives,  and  for  their  frequent  disregard  of 
justice  and  humanity  in  their  dealings  with  the  people 
of  India1.'  And  the  Act  of  1833  requires  the  Govern- 
ment of  India  '  to  provide  for  the  protection  of  the 
natives  from  insult  and  outrage  in  their  persons,  reli- 
gions, and  opinions  V 

It  may  be  thought  that,  even  if  colour  did  not  form 
an  obstacle  to  intermarriage,  religion  would.  Religion, 
however,  can  be  changed,  and  colour  cannot.  In  North 
America  blacks  and  whites  belong  to  the  same  religious 
denominations,  but  the  social  demarcation  remains  com- 
plete. Still  it  is  true  that  the  difference  of  religion  does 
constitute  in  India  a  further  barrier  not  merely  to  inter- 
marriage but  also  to  intimate  social  relations.  Among 
the  Musulmans  the  practice,  or  at  any  rate  the  legal 
possibility  of  polygamy,  naturally  deters  white  women 
from  a  union  they  might  otherwise  have  contemplated. 
(There  have,  however,  been  a  few  instances  of  such 
unions.)  Hinduism  stands  much  further  away  from 
Christianity  than  does  Islam;  and  its  ceremonial  rules 
regarding  the  persons  in  whose  company  food  may  be 
partaken  of  operate  against  a  form  of  social  intercourse 
which  cements  intimacy  among  Europeans  3. 

One  must  always  remember  that  in  the  East  religion 
constitutes  both  a  bond  of  union  and  a  dividing  line 

1  See  Ilbert's  Government  of  India,  p.  77.  2  Ibid.  p.  91. 

3  The  number  of  Hindus  in  all  India  is  estimated  at  207  millions,  that  of  Musul- 
mans at  fifty-seven  millions,  aboriginal  races  nine  millions,  Christians  two  mil- 
lions. 


ROMAN  AND  BRITISH    KM  1*1  RES  57 

of  severance  far  stronger  and  deeper  than  it  does  in 
Western  Europe.  It  largely  replaces  that  national 
feeling  which  is  absent  in  India  and  among  the  Eastern 
peoples  (except  the  Chinese  and  Japanese)  generally. 
Among  Hindus  and  Musulmans  religious  practices  are 
inwoven  with  a  man's  whole  life.  To  the  Hindu  more 
especially  caste  is  everything.  It  creates  a  sort  of  nation- 
ality within  a  nationality,  dividing  the  man  of  one  caste 
from  the  man  of  another,  as  well  as  from  the  man 
who  stands  outside  Hinduism  altogether.  Among  Mus- 
lims there  is  indeed  no  regular  caste  (though  evident 
traces  of  it  remain  among  the  Muhamadans  of  India) ; 
but  the  haughty  exclusiveness  of  Islam  keeps  its  vo- 
taries quite  apart  from  the  professors  of  other  faiths. 
The  European  in  India,  when  he  converses  with  either 
a  Hindu  or  a  Musulman,  feels  strongly  how  far  away 
from  them  he  stands.  There  is  always  a  sense  of 
constraint,  because  both  parties  know  that  a  whole 
range  of  subjects  lies  outside  discussion,  and  must 
not  be  even  approached.  It  is  very  different  when 
one  talks  to  a  native  Christian  of  the  upper  ranks. 
There  is  then  no  great  need  for  reserve  save,  of 
course,  that  the  racial  susceptibilities  of  the  native 
gentleman  who  does  not  belong  to  the  ruling  class 
must  be  respected.  Community  of  religion  in  carry- 
ing the  educated  native  Christian  far  away  from  the 
native  Hindu  or  Muslim,  brings  him  comparatively 
near  to  the  European.  Because  he  is  a  Christian  he 
generally  feels  himself  more  in  sympathy  with  his  Euro- 
pean rulers  than  he  does  with  his  fellow  subjects  of  the 
same  race  and  colour  as  himself. 

Here  I  touch  a  matter  of  the  utmost  interest  when 
one  thinks  of  the  more  remote  future  of  India.  Political 
consequences  greater  than  now  appear  may  depend 
upon  the  spread  of  Christianity  there,  a  spread  whose 
progress,  though  at  present  scarcely  perceptible  in  the 
upper  classes,  may  possibly  become  much  more  rapid 
than  it  has  been  during  the  last  century.  I  do  not 


58  ROMAN  AND  BRITISH  EMPIRES 

say  that  Hinduism  or  Islam  is  a  cause  of  hostility  to 
British  rule.  Neither  do  I  suggest  that  a  Christian 
native  population  would  become  fused  with  the  Euro- 
pean or  Eurasian  population.  But  if  the  number  of 
Christians,  especially  in  the  middle  and  upper  ranks 
of  Indian  society,  were  to  increase,  the  difficulty  of 
ascertaining  native  opinion,  now  so  much  felt  by  In- 
dian administrators,  would  be  perceptibly  lessened,  and 
the  social  separation  of  natives  and  Europeans  might 
become  less  acute,  to  the  great  benefit  of  both  sections 
of  the  population. 

When  we  turn  back  to  the  Roman  Empire  how  strik- 
ing is  the  absence  of  any  lines  of  religious  demarca- 
tion !  One  must  not  speak  of  toleration  as  the  note  of 
its  policy,  because  there  was  nothing  to  tolerate.  All 
religions  were  equally  true,  or  equally  useful,  each  for 
its  own  country  or  nation.  The  satirist  of  an  age  which 
had  already  lost  belief  in  the  Olympian  deities  might 
scoff  at  the  beast-gods  of  Egypt  and  the  fanaticism  which 
their  worship  evoked.  But  nobody  thought  of  convert- 
ing the  devotees  of  crocodiles  or  cats.  A  Briton  brought 
up  by  the  Druids,  or  a  Frisian  who  had  worshipped 
Woden  in  his  youth,  found,  if  he  was  sent  to  command  a 
garrison  in  Syria,  no  difficulty  in  attending  a  sacrifice  to 
the  Syrian  Sun-god,  or  in  marrying  the  daughter  of  the 
Sun-god's  priest.  Possibly  the  first  injunctions  to  have 
regard  to  religion  in  choosing  a  consort  that  were  ever 
issued  in  the  ancient  world  were  such  as  that  given  by 
St.  Paul  when  he  said, '  Be  not  unequally  yoked  together 
with  unbelievers.'  Christianity  had  a  reason  for  this 
precept  which  the  other  religions  had  not,  because  to  it 
all  the  other  religions  were  false  and  pernicious,  draw- 
ing men  away  from  the  only  true  God.  We  may  ac- 
cordingly say  that,  old-established  and  strong  as  some 
of  the  religions  were  which  the  Romans  found  when  they 
began  to  conquer  the  Mediterranean  countries,  religion 
did  not  constitute  an  obstacle  to  the  fusion  of  the  peo- 
ples of  those  countries  into  one  Roman  nationality. 


ROMAN  AND  BRITISH  EMPIRES  59 

When  the  Monotheistic  religions  came  upon  the  scene, 
things  began  to  change.  Almost  the  only  rebellions 
against  Rome  which  were  rather  religious  than  political, 
were  those  of  the  Jews.  When  in  the  fourth,  fifth,  sixth, 
and  seventh  centuries,  sharp  theological  controversies 
began  to  divide  Christians,  especially  in  the  East, 
clangers  appeared  such  as  had  never  arisen  from  reli- 
gious causes  in  the  days  of  heathenism.  Schisms,  like 
that  of  the  Donatists,  and  heresies,  began  to  trouble 
the  field  of  politics.  The  Arian  Goths  and  Vandals 
remained  distinct  from  the  orthodox  provincials  whom 
they  conquered.  In  Egypt,  a  country  always  prone  to 
fanaticism,  the  Monophysite  antagonism  to  the  ortho- 
doxy of  the  Eastern  Emperors  was  so  bitter  that  the 
native  population  showed  signs  of  disaffection  as  early 
as  the  time  of  Justinian,  and  they  offered,  a  century 
later,  scarcely  any  resistance  to  those  Musulman  in- 
vaders from  Arabia  whom  they  disliked  no  more  than 
they  did  their  own  sovereign  at  Constantinople. 

A  fourth  agency  working  for  fusion  which  the  Roman 
Empire  possessed,  and  which  the  English  in  India  want, 
is  to  be  found  in  language  and  literature.  The  con- 
quests of  Rome  had  been  preceded  by  the  spread  of 
the  Greek  tongue  and  of  Greek  culture  over  the  coasts 
of  the  Eastern  Mediterranean.  Even  in  the  interior  of 
Asia  Minor  and  Syria,  though  the  native  languages 
continued  to  be  spoken  in  the  cities  as  late  as  the  time 
of  Tiberius  1,  and  probably  held  their  ground  in  country 
districts  down  till  the  Arab  conquest,  Greek  was  under- 
stood by  the  richer  people,  and  was  a  sort  of  lingua 
franca  for  commerce  from  Sicily  to  the  Euphrates 2. 
Greek  literature  was  the  basis  of  education,  and  formed 
the  minds  of  the  cultivated  class.  It  was  indeed  familiar 
to  that  class  even  in  the  western  half  of  the  Empire, 
through  which,  by  the  time  of  the  Antonines,  Latin  had 

1  As  in  Lycaonia  ;  cf.  Acts  xiv. 

3  There  is  a  curious  story  that  when  the  head  of  Crassus  was  brought  to  the 
Parthian  king  a  passage  from  the  Bacchae  of  Euripides  was  recited  by  a  Greek 
who  was  at  the  Court. 


60  ROMAN  AND  BRITISH  EMPIRES 

begun  to  be  generally  spoken,  except  in  remote  regions 
such  as  the  Basque  country  and  the  banks  of  the  Vaal 
and  North-Western  Gaul.  As  the  process  of  unifi- 
cation usually  works  downwards  from  the  wealthier 
and  better  educated  to  the  masses,  it  was  of  the  utmost 
consequence  that  the  upper  class  should  have,  in  these 
two  great  languages,  a  factor  constantly  operative  in  the 
assimilation  of  the  ideas  of  peoples  originally  distinct, 
in  the  diffusion  of  knowledge,  and  in  the  creation  of  a 
common  type  of  civilization.  Just  as  the  use  of  Latin 
and  of  the  Vulgate  maintained  a  sort  of  unity  among 
Christian  nations  and  races  even  in  the  darkest  and  most 
turbulent  centuries  of  the  Middle  Ages,  so  the  use  of 
Latin  and  Greek  throughout  the  whole  Roman  Empire 
powerfully  tended  to  draw  its  parts  together.  Nor  was 
it  without  importance  that  all  the  subjects  of  the  Empire 
had  the  same  models  of  poetic  and  prose  style  in  the 
classical  writers  of  Greece  and  in  the  Latin  writers  of  the 
pre-Augustan  and  Augustan  age.  Virgil  in  particular 
became  the  national  poet  of  the  Empire,  in  whom  impe- 
rial patriotism  found  its  highest  expression. 

Very  different  have  been  the  conditions  of  India. 
When  the  British  came,  they  found  no  national  litera- 
ture, unless  we  can  apply  that  name  to  the  ancient 
Sanskrit  epics,  written  in  a  tongue  which  had  ceased 
to  be  spoken  many  centuries  before.  Persian  and 
Arabic  were  cultivated  languages,  used  by  educated 
Musulmans  and  by  a  few  Hindu  servants  of  the  Musul- 
man  princes.  The  lingua  franca  called  Hindustani  or 
Urdu,  which  had  sprung  up  in  the  camps  of  the  Mogul 
Emperors,  was  becoming  a  means  of  intercourse  over 
Northern  India,  but  was  hardly  used  throughout  the 
South.  Only  a  handful  of  the  population  were  suf- 
ficiently educated  to  be  accessible  to  the  influences 
of  any  literature,  or  spoke  any  tongue  except  that  of 
their  own  district.  At  present  five  great  languages1, 
branches  of  the  Aryan  family,  divide  between  them 

1  Hindi,  Bengali,  Marathi,  Punjabi,  and  Gujardti. 


ROMAN  AND  BRITISH  EMPIRES  61 

Northern,  North-Western,  and  Middle  India,  and  four 
others  1  of  the  Dravidian  type  cover  Southern  India : 
while  many  others  are  spoken  by  smaller  sections  of  the 
people.  The  language  of  the  English  conquerors,  which 
was  adopted  as  the  official  language  in  1835,  is  the  parent 
tongue  of  only  about  250,000  persons  out  of  287,000,000, 
less  than  one  in  one  thousand.  An  increasing  number 
of  natives  of  the  educated  class  have  learnt  to  speak  it, 
but  even  if  we  reckon  in  these,  it  affects  only  the  most 
insignificant  fraction  of  the  population.  I  have  already 
observed  that  it  was  an  advantage  for  England  in 
conquering  India,  and  is  an  advantage  for  her  in  ruling 
it,  that  the  inhabitants  are  so  divided  by  language  as  well 
as  by  religion  and  (among  the  Hindus)  by  caste  that  they 
could  not  combine  to  resist  her.  Rome  had  enjoyed,  in 
slighter  measure,  a  similar  advantage.  But  whereas  in 
the  Roman  Empire  Greek  and  Latin  spread  so  swiftly  and 
steadily  that  the  various  nationalities  soon  began  to 
blend,  the  absence  in  India  of  any  two  such  dominant 
tongues  and  the  lower  level  of  intellectual  progress  keep 
the  vast  bulk  of  the  Indian  population  without  any  gene- 
ral vehicle  for  the  interchange  of  thought  or  for  the  for- 
mation of  any  one  type  of  literary  and  scientific  culture. 
There  is  therefore  no  national  literature  for  India,  nor 
any  prospect  that  one  will  arise.  No  Cicero  forms 
prose  style,  no  Virgil  inspires  an  imperial  patriotism. 
The  English  have  established  places  of  higher  instruc- 
tion on  the  model  not  so  much  of  Oxford  and  Cam- 
bridge as  of  the  Scottish  Universities  and  the  new 
University  Colleges  which  have  recently  sprung  up 
in  England,  together  with  five  examining  Universities. 
Through  these  institutions  they  are  giving  to  the 
ambitious  youth  of  India,  and  especially  to  those  who 
wish  to  enter  Government  employment  or  the  learned 
professions,  an  education  of  a  European  type,  a  type 
so  remote  from  the  natural  quality  and  proclivities 
of  the  Indian  mind  that  it  is  not  likely  to  give  birth 

a  Telugu,  Tamil,  Kanarese,  Malayalam. 


62  ROMAN  AND  BRITISH  EMPIRES 

to  any  literature  with  a  distinctively  Indian  character. 
Indeed  the  chief  effect  of  this  instruction  has  so  far  been 
to  make  those  who  receive  it  cease  to  be  Hindus  or 
Musulmans  without  making  them  either  Christians  or 
Europeans.  It  acts  as  a  powerful  solvent,  destroying  the 
old  systems  of  conventional  morality,  and  putting  little 
in  their  place.  The  results  may  not  be  seen  for  a  gene- 
ration or  two.  When  they  come  they  may  prove  far 
from  happy. 

If  in  the  course  of  ages  any  one  language  comes 
to  predominate  in  India  and  to  be  the  language  not 
only  of  commerce,  law,  and  administration,  but  also  of 
literature,  English  is  likely  to  be  that  language ;  and 
English  will  by  that  time  have  also  become  the  leading 
language  of  the  world1.  This  will  tend  both  to  unify 
the  peoples  of  India  and  (in  a  sense)  to  bring  them 
nearer  to  their  rulers.  By  that  time,  however,  if  it  ever 
arrives,  so  many  other  changes  will  also  have  arrived 
that  it  is  vain  to  speculate  on  the  type  of  civilization 
which  will  then  have  been  produced. 

These  considerations  have  shown  us  how  different 
have  been  the  results  of  English  from  those  of  Roman 
conquest.  In  the  latter  case  a  double  process  began 
from  the  first.  The  provinces  became  assimilated  to 
one  another,  and  Rome  became  assimilated  to  them,  or 
they  to  her.  As  her  individuality  passed  to  them  it  was 
diluted  by  their  influence.  Out  of  the  one  conquering 
race  and  the  many  conquered  races  there  was  growing  up 
a  people  which,  though  many  local  distinctions  remained, 
was  by  the  end  of  the  fourth  century  A.  D.  tending  to  be- 
come substantially  one  in  religion,  one  in  patriotism,  one 
in  its  type  of  intellectual  life  and  of  material  civilization. 
The  process  was  never  completed,  because  the  end  of 
the  fourth  century  was  just  the  time  when  the  Empire 
began,  not  from  any  internal  dissensions,  but  from 

1  It  is  estimated  that  English  is  at  present  spoken  by  about  115  millions  of  per- 
sons, Russian  by  80  millions,  German  by  70,  Spanish  by  50,  French  by  45.  Of 
these  English  is  increasing  the  most  swiftly,  Russian  next,  and  then  German. 


ROMAN  AND  BRITISH   EM  PI  R  Kit  63 

financial  and  military  weakness,  to  yield  to  invasions  and 
immigrations  which  forced  its  parts  asunder.  But  it  was 
so  far  completed  that  Claudian  could  write  in  the  days 
of  Honorius :  '  We  who  drink  of  the  Rhone  and  the 
Orontes  are  all  one  nation.'  In  this  one  huge  nation 
the  city  and  people  of  Rome  had  been  merged,  their 
original  character  so  obliterated  that  they  could  give 
their  name  to  the  world.  But  in  India  there  has  been 
neither  a  fusion  of  the  conquerors  and  the  conquered, 
nor  even  a  fusion  of  the  various  conquered  races  into 
one  people.  Differences  of  race,  language,  and  religion 
have  prevented  the  latter  fusion:  yet  it  may  some  day 
come.  But  a  fusion  of  conquerors  and  conquered 
seems  to  be  forbidden  by  climate  and  by  the  disparity 
of  character  and  of  civilization,  as  well  as  by  antago- 
nisms of  colour  and  religion.  The  English  are  too 
unlike  the  races  of  India,  or  any  one  of  those  races,  to 
mingle  with  them,  or  to  come  to  form,  in  the  sense  of 
Claudian's  words,  one  people. 

The  nations  and  tribes  that  were  overcome  and 
incorporated  by  Rome  were  either  the  possessors  of  a 
civilization  as  old  and  as  advanced  as  was  her  own,  or 
else,  like  the  Gauls  and  the  Germans,  belonged  to  stocks 
full  of  intellectual  force,  capable  of  receiving  her  lessons, 
and  of  rapidly  rising  to  the  level  of  her  culture.  But  the 
races  of  India  were  all  of  them  far  behind  the  English 
in  material  civilization.  Some  of  them  were  and  are 
intellectually  backward;  others,  whose  keen  intelligence 
and  aptitude  for  learning  equals  that  of  Europeans,  are 
inferior  in  energy  and  strength  of  will.  Yet  even  these 
differences  might  not  render  an  ultimate  fusion  impos- 
sible. It  is  religion  and  colour  that  seem  to  place  that 
result  beyond  any  horizon  to  which  our  eyes  can  reach. 
The  semi-barbarous  races  of  Southern  Siberia  will 
become  Russians.  The  Georgians  and  Armenians  of 
Transcaucasia,  unless  their  attachment  to  their  national 
churches  saves  them,  may  become  Russians.  Even  the 
Turkmans  of  the  Khanates  will  be  Russians  one  day,  as 


64  ROMAN  AND  BRITISH  EMPIRES 

the  Tatars  of  Kazan  and  the  Crimea  are  already  on  the 
way  to  become.  But  the  English  seem  destined  to  re- 
main quite  distinct  from  the  natives  of  India,  neither 
mingling  their  blood  nor  imparting  their  character  and 
habits. 

So  too,  it  may  be  conjectured,  there  will  not  be,  for 
ages  to  come,  any  fusion  of  Americans  with  the  races 
of  the  Philippine  Isles. 

The  observation  that  Rome  effaced  herself  in  giving 
her  name  and  laws  to  the  world  suggests  an  inquiry 
into  what  may  be  called  the  retroactive  influence  of  India 
upon  England.  In  the  annals  of  Rome,  war,  conquest, 
and  territorial  expansion  pervade  and  govern  the  whole 
story.  Her  constitutional,  her  social,  her  economic 
history,  from  the  end  of  the  Samnite  wars  onwards,  is 
substantially  determined  by  her  position  as  a  ruling 
State,  first  in  Italy  and  then  in  the  Mediterranean  world. 
It  was  the  influence  upon  the  City  of  the  phenomena 
of  her  rule  in  the  provinces  that  did  most  to  destroy 
not  only  the  old  constitution  but  the  old  simple  and 
upright  character  of  the  Roman  people.  The  pro- 
vinces avenged  themselves  upon  their  conquerors.  In 
the  end,  Rome  ceases  to  have  any  history  of  her  own, 
except  an  architectural  history,  so  completely  is  she 
merged  in  her  Empire.  To  a  great  extent  this  is  true 
of  Italy  as  well  as  of  Rome.  Italy,  which  had  subjected 
so  many  provinces,  ends  by  becoming  herself  a  province 
— a  province  no  more  important  than  the  others,  except 
in  respect  of  the  reverence  that  surrounded  her  name. 
Her  history,  from  the  time  of  Augustus  till  that  of 
Odovaker  and  Theodorich  the  Ostrogoth,  is  only  a  part 
of  the  history  of  the  Empire.  Quite  otherwise  with 
England.  Though  England  has  founded  many  colonies, 
sent  out  vast  bodies  of  emigrants,  and  conquered  wide 
dominions,  her  domestic  history  has  been,  since  she 
lost  Normandy  and  Aquitaine,  comparatively  little 
affected  by  these  frequent  wars  and  this  immense  ex- 
pansion. One  might  compose  a  constitutional  history 


ROMAN  AND   BRITISH  EMPIRES  65 

of  England,  or  an  economic  and  industrial  history,  or  an 
ecclesiastical  history,  or  a  literary  history,  or  a  social  his- 
tory, in  which  only  few  and  slight  references  would  need 
to  be  made  to  either  the  colonies  or  India.  England  was 
a  great  European  power  before  she  had  any  colonies  or 
any  Indian  territories:  and  she  would  be  a  great  Euro- 
pean power  if  all  of  these  transmarine  possessions  were 
to  drop  off.  Only  at  a  few  moments  in  the  century  and  a 
half  since  the  battle  of  Plassy  have  Indian  affairs  gravely 
affected  English  politics.  Every  one  remembers  Fox's 
India  Bill,  in  1783,  and  the  trial  of  Warren  Hastings, 
and  the  way  in  which  the  Nabobs  seemed  for  a  time  to 
be  demoralizing  society  and  politics.  It  was  in  India 
that  the  Duke  of  Wellington  first  showed  his  powers. 
It  was  through  the  Indian  opium  trade  that  England  first 
came  into  collision  with  China.  The  notion  that  Russian 
ambition  might  become  dangerous  to  the  security  of 
Britain  in  India  had  something  to  do  with  the  Crimean 
War,  and  with  the  subsequent  policy  towards  the  Turks 
followed  by  England  down  to  1880.  The  deplorable 
Afghan  War  of  1878-9  led,  more  perhaps  than  anything 
else,  to  the  fall  of  Lord  Beaconsfield's  Ministry  in  1880. 
Other  instances  might  be  added  in  which  Indian  ques- 
tions have  told  upon  the  foreign  policy  of  Great  Britain, 
or  have  given  rise  to  parliamentary  strife ;  although,  by 
a  tacit  convention  between  the  two  great  parties  in  Eng- 
land, efforts  are  usually  made — and  made  most  wisely — 
to  prevent  questions  of  Indian  administration  from  be- 
coming any  further  than  seems  absolutely  necessary 
matters  of  party  controversy.  Yet,  if  these  instances  be 
all  put  together,  they  are  less  numerous  and  momentous 
than  might  have  been  expected  when  one  considers  the 
magnitude  of  the  stake  which  Britain  holds  in»Intfia.  And 
even  when  we  add  to  these  the  effect  of  Indian  markets 
upon  British  trade,  and  the  undeniable  influence  of  the 
possession  of  India  upon  the  thoughts  and  aspirations 
of  Englishmen,  strengthening  in  them  a  sense  of  pride 
and  what  is  called  an  imperial  spirit,  we  shall  still  be 
5 


66  ROMAN  AND  BRITISH  EMPIRES 

surprised  that  the  control  of  this  vast  territory  and  of 
a  population  more  than  seven  times  as  large  as  that  of 
the  United  Kingdom  has  not  told  more  forcibly  upon 
Britain,  and  coloured  her  history  more  deeply  than 
it  has  in  fact  done.  Suppose  that  England  had  not 
conquered  India.  Would  her  domestic  development, 
whether  constitutional  or  social,  have  taken  a  course 
greatly  different  from  that  which  it  has  actually  fol- 
lowed ?  So  far  as  we  can  judge,  it  would  not.  It  has  been 
the  good  fortune  of  England  to  stand  far  off  from  the 
conquered  countries,  and  to  have  had  a  population  too 
large  to  suffer  sensibly  from  the  moral  evils  which 
conquest  and  the  influx  of  wealth  bring  in  their  train1. 

The  remark  was  made  at  the  outset  of  this  discussion 
that  the  contact  of  the  English  race  with  native  races 
in  India,  and  the  process  by  which  the  former  is  giving 
the  material  civilization,  and  a  tincture  of  the  intellec- 
tual culture  of  Europe  to  a  group  of  Asiatic  peoples, 
is  only  part  of  that  contact  of  European  races  with 
native  races  and  of  that  Europeanizing  of  the  latter  by 
the  former  which  is  going  on  all  over  the  world.  France 
is  doing  a  similar  work  in  North  Africa  and  Madagascar. 
Russia  is  doing  it  in  Turkistan  and  on  the  Amur;  and 
may  probably  be  soon  engaged  upon  it  in  Manchuria. 
Germany  is  doing  it  in  tropical  Africa.  England  is 
doing  it  in  Egypt  and  Borneo  and  Matabililand.  The 
people  of  the  United  States  are  entering  upon  it  in  the 
Philippine  Islands.  Every  one  of  these  nations  pro- 
fesses to  be  guided  by  philanthropic  motives  in  its  action. 
But  it  is  not  philanthropy  that  has  carried  any  of  them 
into  these  enterprises,  nor  is  it  clear  that  the  result  will 
be  to  increase  the  sum  of  human  happiness. 

It  is  in  India,  however,  that  the  process  has  been  in 
progress  for  the  longest  time  and  on  the  largest  scale. 
Even  after  a  century's  experience  the  results  cannot 
be  adequately  judged,  for  the  country  is  in  a  state 

1  The  absence  of  slavery  and  the  existence  of  Christianity  will  of  course  present 
themselves  to  every  one's  mind  as  other  factors  in  differentiating  the  conditions 
of  the  modern  from  those  of  the  Roman  world. 


ROMAN  AND  BRITISH  EMPIRES  67 

of  transition,  with  all  sorts  of  new  factors,  such  as  rail- 
ways, and  newspapers,  and  colleges,  working  as  well 
upon  the  humbler  as  upon  the  wealthier  sections  of  the 
people.  Three  things,  however,  the  career  of  the  Eng- 
lish in  India  has  proved.  One  is,  that  it  is  possible 
for  a  European  race  to  rule  a  subject  native  race  on 
principles  of  strict  justice,  restraining  the  natural  pro- 
pensity of  the  stronger  to  abuse  their  power.  India 
has  been,  and  is,  ruled  upon  such  principles.  When 
oppression  or  cruelty  is  perpetrated,  it  is  not  by  the 
European  official  but  by  his  native  subordinates,  and 
especially  by  the  native  police,  whose  delinquencies  the 
European  official  cannot  always  discover.  Scorn  or 
insolence  is  sometimes  displayed  towards  the  natives  by 
Europeans,  and  nothing  does  more  to  destroy  the  good 
effects  of  just  government  than  such  displays  of  scorn. 
But  again,  it  is  seldom  the  European  civil  officials,  but 
either  private  persons  or  occasionally  junior  officers 
in  the  army,  who  are  guilty  of  this  abuse  of  their  racial 
superiority. 

The  second  thing  is  that  a  relatively  small  body  of 
European  civilians,  supported  by  a  relatively  small  armed 
force,  can  maintain  peace  and  order  in  an  immense 
population  standing  on  a  lower  plane  of  civilization,  and 
itself  divided  by  religious  animosities  bitter  enough  to 
cause  the  outbreak  of  intestine  wars  were  the  restrain- 
ing hand  withdrawn. 

The  third  fact  is  that  the  existence  of  a  system  securing 
these  benefits  is  compatible  with  an  absolute  separation 
between  the  rulers  and  the  ruled.  The  chasm  between 
them  has  in  these  hundred  years  of  intercourse  grown 
no  narrower.  Some  even  deem  it  wider,  and  regret  the 
fact  that  the  European  official,  who  now  visits  England 
more  easily  and  frequently,  does  not  identify  himself 
so  thoroughly  with  India  as  did  his  predecessors  some 
seventy  years  ago.  As  one  of  the  greatest  problems  of 
this  age,  and  of  the  age  which  will  follow,  is  and  must  be 
the  relation  between  the  European  races  as  a  whole  on 


68  ROMAN  AND  BRITISH  EMPIRES 

the  one  hand,  and  the  more  backward  races  of  a  different 
colour  on  the  other  hand,  this  incompatibility  of  temper, 
this  indisposition  to  be  fused,  or,  one  may  almost  say, 
this  impracticability  of  fusion,  is  a  momentous  result, 
full  of  significance  for  the  future.  It  was  quite  otherwise 
with  that  first  effort  of  humanity  to  draw  itself  together, 
which  took  shape  in  the  fusion  of  the  races  that  Rome 
conquered,  and  the  creation  of  one  Greco-Roman  type 
of  civilization  for  them.  But  the  conditions  of  that  small 
ancient  world  were  very  different  from  those  by  which 
mankind  finds  itself  now  confronted. 

It  is  impossible  to  think  of  the  future  and  to  recall  that 
first  impluse  towards  the  unity  of  mankind  which  closed 
fourteen  centuries  ago,  without  reverting  once  more 
to  the  Roman  Empire,  and  asking  whether  the  events 
which  caused,  and  the  circumstances  which  accompanied, 
its  dissolution  throw  any  light  on  the  probable  fate  of 
British  dominion  in  the  East. 

Empires  die  sometimes  by  violence  and  sometimes 
by  disease.  Frequently  they  die  from  a  combination  of 
the  two,  that  is  to  say,  some  chronic  disease  so  reduces 
their  vitality  that  a  small  amount  of  external  violence 
suffices  to  extinguish  the  waning  life.  It  was  so  with  the 
dominion  of  Rome.  To  outward  appearance  it  was  the 
irruption  of  the  barbarians  from  the  north  that  tore  away 
the  provinces  in  the  west,  as  it  was  the  assault  of  the 
Turks  in  1453  that  gave  the  last  death  blow  to  the 
feeble  and  narrowed  Empire  which  had  lingered  on 
in  the  East.  But  the  dissolution  and  dismemberment 
of  the  western  Roman  Empire,  beginning  with  the 
abandonment  of  Britain  in  A.  D.  411,  and  ending  with  the 
establishment  of  the  Lombards  in  Italy  in  A.  D.  568, 
with  the  conquest  of  Africa  by  the  Arab  chief  Sidi  Okba 
in  the  seventh  century,  and  with  the  capture  of  Sicily 
by  Musulman  fleets  in  the  ninth,  were  really  due  to 
internal  causes  which  had  been  for  a  long  time  at 
work.  In  some  provinces  at  least  the  administration 
had  become  inefficient  or  corrupt,  and  the  humbler 


ROMAN  AND  BRITISH  EMPIRES  6fi 

classes  were  oppressed  by  the  more  powerful.  The 
population  had  in  many  regions  been  diminished.  In 
nearly  all  it  had  become  unwarlike,  so  that  barbarian 
levies,  raised  on  the  frontier,  had  taken  the  place  of 
native  troops.  The  revenue  was  unequal  to  the  task  of 
maintaining  an  army  sufficient  for  defence.  •  How  far 
the  financial  straits  to  which  the  government  was  re- 
duced were  due  to  the  exhaustion  of  the  soil,  how  far 
to  maladministration  is  not  altogether  easy  to  determine. 
They  had  doubtless  been  aggravated  by  the  disorders 
and  invasions  of  A.  D.  260-282.  Neither  can  we  tell 
whether  the  intellectual  capacity  of  the  ruling  class  and 
the  physical  vigour  of  the  bulk  of  the  population  may  not 
have  declined.  But  it  seems  pretty  clear  that  the  armies 
and  the  revenue  that  were  at  the  disposal  of  Trajan 
would  have  been  sufficient  to  defend  the  Empire  three 
centuries  later,  when  the  first  fatal  blows  were  struck; 
and  we  may  therefore  say  that  it  was  really  from  internal 
maladies,  from  anaemia  or  atrophy,  from  the  want  of 
men  and  the  want  of  money,  perhaps  also  from  the 
want  of  wisdom,  rather  than  from  the  appearance  of 
more  formidable  foes,  that  the  Empire  perished  in  the 
West. 

British  power  in  India  shows  no  similar  signs  of 
weakness,  for  though  the  establishment  of  internal 
peace  is  beginning  to  make  it  less  easy  to  recruit  the 
native  army  with  first-class  fighting-men,  such  as  the 
Punjab  used  to  furnish,  it  has  been  hitherto  found 
possible  to  keep  that  army  up  to  its  old  standard  of 
numbers  and  efficiency.  Still  the  warning  Rome  has 
bequeathed  is  a  warning  not  to  be  neglected.  Her  great 
difficulty  was  finance  and  the  impoverishment  of  the 
cultivator.  Finance  and  the  poverty  of  the  cultivator, 
who  is  always  in  danger  of  famine,  and  is  taxed  to  the 
full  measure  of  his  capacity — these  are  the  standing 
difficulties  of  Indian  administration;  and  they  do  not 
grow  less,  for,  as  population  increases,  the  struggle  for 
food  is  more  severe,  and  the  expenditure  on  frontier 


70  ROMAN  AND  BRITISH  EMPIRES 

defence,  including  strategic  railways,  has  gone  on  rapidly 
increasing. 

As  England  seems  to  be  quite  as  safe  from  rebellion 
within  India  as  was  Rome  within  her  Empire,  so  is  she 
stronger  against  external  foes  than  Rome  was,  for  she 
has  far  more  defensible  frontiers,  viz.  the  sea  which 
she  commands,  and  a  tremendous  mountain  barrier  in 
whose  barren  gorges  a  comparatively  small  force  might 
repel  invaders  coming  from  a  distance  and  obliged  to 
carry  their  food  with  them.  There  is  really,  so  far  as 
can  be  seen  at  present,  only  one  danger  against  which 
the  English  have  to  guard,  that  of  provoking  discontent 
among  their  subjects  by  laying  on  them  too  heavy  a 
burden  of  taxation.  It  has  been  suggested  that  when 
the  differences  of  caste  and  religion  which  now  separate 
the  peoples  of  India  from  one  another  have  begun  to 
disappear,  when  European  civilization  has  drawn  them 
together  into  one  people,  and  European  ideas  have 
created  a  large  class  of  educated  and  restless  natives 
ill  disposed  to  brook  subjection  to  an  alien  race,  new 
dangers  may  arise  to  threaten  the  permanence  of  British 
power.  Such  possibilities,  however,  belong  to  a  future 
which  is  still  far  distant. 

It  is,  of  course,  upon  England  in  the  last  resort  that 
the  defence  of  India  rests.  The  task  is  well  within  her 
strength,  though  serious  enough  to  make  it  fitting  that 
a  prudent  and  pacific  spirit  should  guide  her  whole 
foreign  and  colonial  policy,  that  she  should  neither  em- 
bark on  needless  wars  nor  lay  on  herself  the  burden 
of  holding  down  disaffected  subjects. 

England  must  be  prepared  to  command  the  sea,  and 
to  spare  80,000  of  her  soldiers  to  garrison  the  country. 
Were  she  ever  to  find  herself  unable  to  do  this,  what 
would  become  of  India?  Its  political  unity,  which  de- 
pends entirely  on  the  English  Raj,  would  vanish  like 
a  morning  mist.  Wars  would  break  out,  wars  of  am- 
bition, or  plunder,  or  religion,  which  might  end  in  the 
ascendency  of  a  few  adventurers,  not  necessarily  belong- 


//o.i/.i.v  .i\/>  BRITISH  /;.i//'/ A'/;N  71 

ing  to  the  reigning  native  dynasties,  but  probably  either 
Pathans,  or  Sikhs,  or  Aiusulmans  of  the  north-west. 
The  Marathas  might  rise  in  the  West.  The  Nepalese 
might  descend  upon  Bengal.  Or  perhaps  the  country 
would,  after  an  interval  of  chaos,  pass  into  the  hands 
of  some  other  European  Power.  To  India  severance 
from  England  would  mean  confusion,  bloodshed,  and 
pillage.  To  England  however,  apart  from  the  par- 
ticular events  which  might  have  caused  the  snapping 
of  the  tie,  and  apart  from  the  possible  loss  of  a  market, 
severance  from  India  need  involve  no  lasting  injury. 
To  be  mistress  of  a  vast  country  whose  resources  for 
defence  need  to  be  supplemented  by  her  own,  adds 
indeed  to  her  fame,  but  does  not  add  to  her  strength. 
England  was  great  and  powerful  before  she  owned 
a  yard  of  land  there,  and  might  be  great  and  powerful 
again  with  no  more  foothold  in  the  East  than  would 
be  needed  for  the  naval  fortresses  which  protect  her 
commerce. 

Happily,  questions  such  as  these  are  for  the  moment 
purely  speculative. 


II 

THE  EXTENSION  OF  ROMAN  AND 

ENGLISH    LAW  THROUGHOUT 

THE  WORLD 

I.   THE  REGIONS  COVERED  BY  ROMAN  AND  ENGLISH  LAW. 

FROM  a  general  comparison  of  Rome  and  England  as 
powers  conquering  and  administering  territories  beyond 
their  original  limits,  it  is  natural  to  pass  on  to  consider 
one  particular  department  of  the  work  which  territorial 
extension  has  led  them  to  undertake,  viz.  their  action  as 
makers  of  a  law  which  has  spread  far  out  over  the 
world.  Both  nations  have  built  up- legal  systems  which 
are  now — for  the  Roman  law  has  survived  the  Roman 
Empire,  and  is  full  of  vitality  to-day — in  force  over 
immense  areas  that  were  unknown  to  those  who  laid 
the  foundations  of  both  systems.  In  this  respect  Rome 
and  England  stand  alone  among  nations,  unless  we 
reckon  in  the  law  of  Islam  which,  being  a  part  of  the 
religion  of  Islam,  governs  Musulmans  wherever  Musul- 
mans  are  to  be  found. 

Roman  law,  more  or  less  modified  by  national  or 
local  family  customs  or  land  customs  and  by  modern 
legislation,  prevails  to-day  in  all  the  European  countries 
which  formed  part  either  of  the  ancient  or  of  the 
mediaeval  Roman  Empire,  that  is  to  say,  in  Italy,  in 
Greece  and  the  rest  of  South-Eastern  Europe  (so  far 
as  the  Christian  part  of  the  population  is  concerned), 


ROMAN  AND  ENGLISH   LAW  73 

in  Spain,  Portugal,  Switzerland,  France,  Germany  (in- 
cluding the  German  and  Slavonic  parts  of  the  Austro- 
Hungarian  monarchy),  Belgium,  Holland.  The  only 
exception  is  South  Britain,  which  lost  its  Roman  law 
with  the  coming  of  the  Angles  and  Saxons  in  the  fifth 
century.  The  leading  principles  of  Roman  jurisprudence 
prevail  also  in  some  other  outlying  countries  which  have 
borrowed  much  of  their  law  from  some  one  or  more 
of  the  countries  already  named,  viz.  Denmark,  Norway, 
Sweden,  Russia,  and  Hungary.  Then  come  the  non- 
European  colonies  settled  by  some  among  the  above 
States,  such  as  Louisiana,  the  Canadian  province  of 
Quebec,  Ceylon,  British  Guiana,  South  Africa  (all  the 
above  having  been  at  one  time  colonies  either  of  France 
or  of  Holland),  German  Africa,  and  French  Africa,  to- 
gether with  the  regions  which  formerly  obeyed  Spain 
or  Portugal,  including  Mexico,  Central  America,  South 
America,  and  the  Philippine  Islands.  Add  to  these  the 
Dutch  and  French  East  Indies,  and  Siberia.  There  is 
also  Scotland,  which  has  since  the  establishment  of  the 
Court  of  Session  by  King  James  the  Fifth  in  1532  built 
up  its  law  out  of  Roman  Civil  and  (to  some  slight  extent) 
Roman  Canon  Law1. 

English  law  is  in  force  not  only  in  England,  Wales, 
and  Ireland  but  also  in  most  of  the  British  colonies. 
Quebec,  Ceylon,  Mauritius,  South  Africa,  and  some  few 
of  the  West  Indian  islands  follow  the  Roman  law  2.  The 
rest,  including  Australia,  New  Zealand,  and  all  Canada 
except  Quebec,  follow  English ;  as  does  also  the  United 
States,  except  Louisiana,  but  with  the  Hawaiian  Islands, 
and  India,  though  in  India,  as  we  shall  see,  native  law 
is  also  administered. 

1  There  is  scarcely  a  trace  of  Celtic  custom  in  modern  Scottish  law.    The  law 
of  land,  however,  is  largely  of  feudal  origin  ;  and  commercial  law  has  latterly  been 
influenced  by  that  of  England. 

2  In  these  West  Indian  islands,  however,  that  which  remains  of  Spanish  law, 
as  in  Trinidad  and  Tobago,  and  of  French  law,  as  in  St.  Vincent,  is  now  compara- 
tively slight ;  and  before  long  the  West  Indies  (except  Cuba  and  Puerto  Rico, 
Guadeloupe  and  Martinique)  will  be  entirely  under  English  law.    See  as  to  the 
British  colonies  generally,  C.  P.  Ilbert's  Legislative  Methods  and  Forms \  chap.  ix. 


74  ROMAN  AND  ENGLISH  LAW 

Thus  between  them  these  two  systems  cover  nearly  the 
whole  of  the  civilized,  and  most  of  the  uncivilized  world. 
Only  two  considerable  masses  of  population  stand  out- 
side— the  Musulman  East,  that  is,  Turkey,  North  Africa, 
Persia,  Western  Turkistan  and  Afghanistan,  which  obey 
the  sacred  law  of  Islam,  and  China,  which  has  customs 
all  her  own.  It  is  hard  to  estimate  the  total  number  of 
human  beings  who  live  under  the  English  common  law, 
for  one  does  not  know  whether  to  reckon  in  the  semi- 
savage  natives  of  such  regions  as  Uganda,  for  instance, 
or  Fiji.  But  there  are  probably  one  hundred  and  thirty 
millions  of  civilized  persons  (without  counting  the  na- 
tives of  India)  who  do :  and  the  number  living  under 
some  modern  form  of  the  Roman  law  is  still  larger. 

It  is  of  the  process  by  which  two  systems  which  had 
their  origin  in  two  small  communities,  the  one  an 
Italian  city,  the  other  a  group  of  Teutonic  tribes,  have 
become  extended  over  nine-tenths  of  the  globe  that 
I  propose  to  speak  in  the  pages  that  follow.  There  are 
analogies  between  the  forms  which  the  process  took  in 
the  two  cases.  There  are  also  contrasts.  The  main 
contrast  is  that  whereas  we  may  say  that  (roughly 
speaking)  Rome  extended  her  law  by  conquest,  that  is, 
by  the  spreading  of  her  power,  England  has  extended 
hers  by  settlement,  that  is,  by  the  spreading  out  of  her 
race.  In  India,  however,  conquest  rather  than  coloniza- 
tion has  been  the  agency  employed  by  England,  and  it 
is  therefore  between  the  extension  of  English  law  to 
India  and  the  extension  of  Roman  law  to  the  Roman 
Empire  that  the  best  parallel  can  be  drawn.  It  need 
hardly  be  added  that  the  Roman  law  has  been  far  more 
changed  in  descending  to  the  modern  world  and  becom- 
ing adapted  to  modern  conditions  of  life  than  the  law 
of  England  has  been  in  its  extension  over  new  areas. 
That  extension  is  an  affair  of  the  last  three  centuries 
only,  and  the  whole  history  of  English  law  is  of  only 
some  eleven  centuries  reckoning  from  Kings  Ine  and 
Alfred,  let  us  say,  to  A,  D,  1900,  or  of  eight,  if  we  begin 


ROMAN  AND   ENGLISH  LAW  75 

with  King  Henry  the  Second,  whereas  that  of  Roman 
law  covers  twenty-five  centuries,  of  which  all  but  the  first 
three  have  witnessed  the  process  of  extension,  so  early 
did  Rome  begin  to  impose  her  law  upon  her  subjects. 
To  the  changes,  however,  which  have  passed  on  the 
substance  of  the  law  we  shall  return  presently.  Let  us 
begin  by  examining  the  causes  and  circumstances  which 
induced  the  extension  to  the  whole  ancient  world  of 
rules  and  doctrines  that  had  grown  up  in  a  small  city. 

II.    THE  DIFFUSION  OF  ROMAN  LAW  BY  CONQUEST. 

The  first  conquests  of  Rome  were  made  in  Italy. 
They  did  not,  however,  involve  any  legal  changes,  for 
conquest  meant  merely  the  reduction  of  what  had  been 
an  independent  city  or  group  of  cities  or  tribes  to 
vassalage,  with  the  obligation  of  sending  troops  to  serve 
in  the  Roman  armies.  Local  autonomy  was  not  (as 
a  rule)  interfered  with;  and  such  autonomy  included 
civil  jurisdiction,  so  the  Italic  and  Greco-Italic  cities  con- 
tinued to  be  governed  by  their  own  laws,  which  in  the 
case  at  least  of  Oscan  and  Umbrian  communities  usually 
resembled  that  of  Rome,  and  which  of  course  tended  to 
become  assimilated  to  it  even  before  Roman  citizenship 
was  extended  to  the  Italian  allies.  With  the  annexa- 
tion of  part  of  Sicily  in  A.  D.  230  the  first  provincial 
government  was  set  up,  and  the  legal  and  administrative 
problems  which  Rome  had  to  deal  with  began  to  show 
themselves.  Other  provinces  were  added  in  pretty 
rapid  succession,  the  last  being  Britain  (invaded  under 
Claudius  in  A.  D.  43).  Now  although  in  all  these  pro*- 
vinces  the  Romans  had  to  maintain  order,  to  collect 
revenue  and  to  dispense  justice,  the  conditions  under 
which  these  things,  and  especially  the  dispensing  of 
justice,  had  to  be  done  differed  much  in  different  pro- 
vinces Some,  such  as  Sicily,  Achaia,  Macedonia  and 
the  provinces  of  Western  Asia  Minor,  as  well  as  Africa 
(»'.  e.  such  parts  of  that  province  as  Carthage  had  per- 


76  ROMAN  AND   ENGLISH  LAW 

meated),  were  civilized  countries,  where  law-courts  al- 
ready existed  in  the  cities1.  The  laws  had  doubtless 
almost  everywhere  been  created  by  custom,  for  the  so- 
called  Codes  we  hear  of  in  Greek  cities  were  often 
rather  in  the  nature  of  political  constitutions  and  penal 
enactments  than  summarized  statements  of  the  whole 
private  law ;  yet  in  some  cities  the  customs  had  been  so 
summarized  2.  Other  provinces,  such  as  those  of  Thrace, 
Transalpine  Gaul,  Spain,  and  Britain,  were  in  a  lower 
stage  of  social  organization,  and  possessed,  when  they 
were  conquered,  not  -so  much  regular  laws  as  tribal 
usages,  suited  to  their  rude  inhabitants.  In  the  former 
set  of  cases  not  much  new  law  was  needed.  In  the 
latter  set  the  native  customs  could  not  meet  the  needs  of 
communities  which  soon  began  to  advance  in  wealth  and 
culture  under  Roman  rule,  so  law  had  to  be  created. 

There  were  also  in  all  these  provinces  two  classes 
of  inhabitants.  One  consisted  of  those  who  enjoyed 
Roman  citizenship,  not  merely  men  of  Italian  birth 
settled  there  but  also  men  to  whom  citizenship  had 
been  granted  (as  for  instance  when  they  retired  from 
military  service),  or  the  natives  of  cities  on  which  (as  to 
Tarsus  in  Cilicia,  St.  Paul's  birthplace)  citizenship  had 
been  conferred  as  a  boon3.  This  was  a  large  class,  and 
went  on  rapidly  increasing.  To  it  pure  Roman  law 
was  applicable,  subject  of  course  to  any  local  customs. 

The  other  class  consisted  of  the  provincial  subjects 
who  were  merely  subjects,  and,  in  the  view  of  the 
Roman  law,  aliens  (peregrini).  They  had  their  own  laws 

•  i  Cicero  says  of  Sicily,  '  Siculi  hoc  iure  sunt  ut  quod  civis  cum  cive  agat,  domi 
certet  suis  legibus ;  quod  Siculus  cum  Siculo  non  eiusdem  civitatis,  ut  de  eo  praetor 
iudices  sortiatur'  ;  In  Verrem,  ii.  13,  32. 

2  The  laws  of  Gortyn  in  Crete,  recently  published  from  an  inscription  dis- 
covered there,  apparently  of  about  500  B.  c.,  are  a  remarkable  instance.    Though 
not  a  complete  code,  they  cover  large  parts  of  the  field  of  law. 

3  When  I  speak  of  citizenship,  it  is  not  necessarily  or  generally  political  citizen- 
ship that  is  to  be  understood,  but  the  citizenship  which  carried  with  it  private 
civil  rights  (those  rights  which  the  Romans  call  connubium  and  commercium) ,  in- 
cluding Roman  family  and  inheritance  law  and  Roman  contract  and  property 
law.    Not  only  the  civilized  Spaniards  but  the  bulk  of  the  upper  class  in  Greece 
seem  to  have  become  citizens  by  the  time  of  the  Antonines. 


ROMAN  AND  ENGLISH  LAW  77 

or  tribal  customs,  and  to  them  Roman  law  was  primarily 
inapplicable,  not  only  because  it  was  novel  and  un- 
familiar, so  strange  to  their  habits  that  it  would  have 
been  unjust  as  well  as  practically  inconvenient  to  have 
applied  it  to  them,  but  also  because  the  Romans,  like  the 
other  civilized  communities  of  antiquity,  had  been  so 
much  accustomed  to  consider  private  legal  rights  as 
necessarily  connected  with  membership  of  a  city  com- 
munity that  it  would  have  seemed  unnatural  to  apply  the 
private  law  of  one  city  community  to  the  citizens  of 
another.  It  is  true  that  the  Romans  after  a  time  dis- 
abused their  minds  of  this  notion,  as  indeedthey  had  from 
a  comparatively  early  period  extended  their  own  private 
civil  rights  to  many  of  the  cities  which  had  become  their 
subject  allies.  Still  it  continued  to  influence  them  at 
the  time  (B.  c.  230  to  120)  when  they  were  laying  out 
the  lines  of  their  legal  policy  for  the  provinces. 

Of  that  legal  policy  I  must  speak  quite  briefly,  partly 
because  our  knowledge,  though  it  has  been  enlarged 
of  late  years  by  the  discovery  and  collection  of  a  great 
mass  of  inscriptions,  is  still  imperfect,  partly  because 
I  could  not  set  forth  the  details  without  going  into  a 
number  of  technical  points  which  might  perplex  readers 
unacquainted  with  the  Roman  law.  It  is  only  the  main 
lines  on  which  the  conquerors  proceeded  that  can  be 
here  indicated. 

Every  province  was  administered  by  a  governor  with 
a  staff  of  subordinate  officials,  the  higher  ones  Roman, 
and  (under  the  Republic)  remaining  in  office  only  so 
long  as  did  the  governor.  The  governor  was  the 
head  of  the  judicial  as  well  as  the  military  and  civil  ad- 
ministration, just  as  the  consuls  at  Rome  originally 
possessed  judicial  as  well  as  military  and  civil  powers, 
and  just  as  the  praetor  at  Rome,  though  usually  occupied 
with  judicial  work,  had  also  both  military  and  civil  autho- 
rity. The  governor's  court  was  the  proper  tribunal  for 
those  persons  who  in  the  provinces  enjoyed  Roman 
citizenship,  and  in  it  Roman  law  was  applied  to  such 


78  ROMAN  AND   ENGLISH  LAW 

persons  in  matters  touching  their  family  relations,  their 
rights  of  inheritance,  their  contractual  relations  with  one 
another,  just  as  English  law  is  applied  to  Englishmen 
in  Cyprus  or  Hong  Kong.  No  special  law  was  needed 
for  them.  As  regards  the  provincials,  they  lived  under 
their  own  law,  whatever  it  might  be,  subject  to  one  im- 
portant modification.  Every  governor  when  he  entered 
his  province  issued  an  Edict  setting  forth  certain  rules 
which  he  proposed  to  apply  during  his  term  of  office. 
These  rules  were  to  be  valid  only  during  his  term,  for 
his  successor  issued  a  fresh  Edict,  but  in  all  probability 
each  reproduced  nearly  all  of  what  the  preceding  Edict 
had  contained.  Thus  the  same  general  rules  remained 
continuously  in  force,  though  they  might  be  modified  in 
detail,  improvements  which  experience  had  shown  to  be 
necessary  being  from  time  to  time  introduced1.  This 
was  the  method  which  the  praetors  followed  at  Rome, 
so  the  provincial  governors  had  a  precedent  for  it  and 
knew  how  to  work  it.  Now  the  Edict  seems  to  have 
contained,  besides  its  provisions  regarding  the  collection 
of  revenue  and  civil  administration  in  general,  certain 
more  specifically  legal  regulations,  intended  to  indicate 
the  action  which  the  governor's  court  would  take  not 
only  in  disputes  arising  between  Roman  citizens,  but 
also  in  those  between  citizens  and  aliens,  and  probably 
also  to  some  extent  in  those  between  aliens  them- 
selves. Where  the  provisions  of  the  Edict  did  not 
apply,  aliens  would  be  governed  by  their  own  law. 
In  cities  municipally  organized,  and  especially  in  the 
more  civilized  provinces,  the  local  city  courts  would 
doubtless  continue  to  administer,  as  they  had  done 
before  the  Romans  came,  their  local  civil  law;  and  in 
the  so-called  free  cities,  which  had  come  into  the  Empire 
as  allies,  these  local  courts  had  for  a  long  time  a  wide 
scope  for  their  action.  Criminal  law,  however,  would 
seem  to  have  fallen  within  the  governor's  jurisdiction, 
at  any  rate  in  most  places  and  for  the  graver  offences, 

1  As  to  this  see  Essay  XIV,  p.  692  sqq. 


HUMAN  AND  ENGLISH  LAW  79 

because  criminal  law  is  the  indispensable  guarantee 
for  public  order  and  for  the  repression  of  sedition 
or  conspiracy,  matters  for  which  the  governor  was  of 
course  responsible1.  Thus  the  governor's  court  was 
not  only  that  which  dispensed  justice  between  Roman 
citizens,  and  which  dealt  with  questions  of  revenue,  but 
was  also  the  tribunal  for  cases  between  citizens  and 
aliens,  and  for  the  graver  criminal  proceedings.  It  was 
apparently  also  a  court  which  entertained  some  kinds 
of  suits  between  aliens,  as  for  instance  between  aliens 
belonging  to  different  cities,  or  in  districts  where  no 
regular  municipal  courts  existed,  and  (probably)  dealt 
with  appeals  from  those  courts  where  they  did  exist. 
Moreover  where  aliens  even  of  the  same  city  chose  to 
resort  to  it  they  could  apparently  do  so.  I  speak  of 
courts  rather  than  of  law,  because  it  must  be  remem- 
bered that  although  we  are  naturally  inclined  to  think 
of  law  as  coming  first,  and  courts  being  afterwards 
created  to  administer  law,  it  is  really  courts  that  come 
first,  and  that  by  their  action  build  up  law  partly  out 
of  customs  observed  by  the  people  and  partly  out  of 
their  own  notions  of  justice.  This,  which  is  generally 
true  of  all  countries,  is  of  course  specially  true  of  coun- 
tries where  law  is  still  imperfectly  developed,  and  of 
places  where  different  classes  of  persons,  not  governed 
by  the  same  legal  rules,  have  to  be  dealt  with. 

The  Romans  brought  some  experience  to  the  task 
of  creating  a  judicial  administration  in  the  provinces, 
where  both  citizens  and  aliens  had  to  be  considered,  for 
Rome  herself  had  become,  before  she  began  to  acquire 
territories  outside  Italy,  a  place  of  residence  or  resort 
for  alien  traders,  so  that  as  early  as  B.  c.  247  she  created 
a  magistrate  whose  special  function  it  became  to  handle 
suits  between  aliens,  or  in  which  one  party  was  an 
alien.  This  magistrate  built  up,  on  the  basis  of  mer- 

1  In  St.  Paul's  time,  however,  the  Athenian  Areopagus  would  seem  to  have  re- 
tained its  jurisdiction  ;  cf.  Acts  xvii.  19.  The  Romans  treated  Athens  with  special 
consideration. 


80  ROMAN  AND  ENGLISH  LAW 

cantile  usage,  equity,  and  common  sense,  a  body  of 
rules  fit  to  be  applied  between  persons  whose  native 
law  was  not  the  same ;  and  the  method  he  followed 
would  naturally  form  a  precedent  for  the  courts  of  the 
provincial  governors. 

Doubtless  the  chief  aim,  as  well  as  the  recognized 
duty,  of  the  governors  was  to  disturb  provincial  usage 
as  little  as  they  well  could.  The  temptations  to  which 
they  were  exposed,  and  to  which  they  often  succumbed, 
did  not  lie  in  the  direction  of  revolutionizing  local  law 
in  order  to  introduce  either  purely  Roman  doctrines 
or  any  artificial  uniformity1.  They  would  have  made 
trouble  for  themselves  had  they  attempted  this.  And 
why  should  they  attempt  it  ?  The  ambitious  governors 
desired  military  fame.  The  bad  ones  wanted  money. 
The  better  men,  such  as  Cicero,  and  in  later  days 
Pliny,  liked  to  be  feted  by  the  provincials  and  have 
statues  erected  to  them  by  grateful  cities.  No  one 
of  these  objects  was  to  be  attained  by  introducing  legal 
reforms  which  theory  might  suggest  to  a  philosophic 
statesman,  but  which  nobody  asked  for.  It  seems  safe 
to  assume  from  what  we  know  of  official  human  nature 
elsewhere,  that  the  Roman  officials  took  the  line  of  least 
resistance  compatible  with  the  raising  of  money  and 
the  maintenance  of  order.  These  things  being  secured, 
they  would  be  content  to  let  other  things  alone. 

Things,  however,  have  a  way  of  moving  even  when 
officials  may  wish  to  let  them  rest.  When  a  new  and 
vigorous  influence  is  brought  into  a  mixture  of  races 
receptive  rather  than  resistent  (as  happened  in  Asia 
Minor  under  the  Romans),  or  when  a  higher  culture 
acts  through  government  upon  a  people  less  advanced 
but  not  less  naturally  gifted  (as  happened  in  Gaul  under 
the  Romans),  changes  must  follow  in  law  as  well  as  in 
other  departments  of  human  action.  Here  two  forces 

1  One  of  the  charges  against  Verres  was  that  he  disregarded  all  kinds  of  law 
alike.  Under  him,  says  Cicero,  the  Sicilians  '  neque  suas  leges  neque  nostra  sena- 
tus  consulta  neque  communia  iura  tenuerunt ' ;  In  Verr.  i.  4,  13. 


ROMAN  AND  ENGLISH  LAW  81 

were  at  work.  One  was  the  increasing  number  of  per- 
sons who  were  Roman  citizens,  and  therefore  lived  by 
the  Roman  law.  The  other  was  the  increasing  tendency 
of  the  government  to  pervade  and  direct  the  whole  public 
life  of  the  province.  When  monarchy  became  established 
as  the  settled  form  of  the  Roman  government,  pro- 
vincial administration  began  to  be  better  organized,  and 
a  regular  body  of  bureaucratic  officials  presently  grew  up. 
The  jurisdiction  of  the  governor's  court  extended  itself, 
and  was  supplemented  in  course  of  time  by  lower  courts 
administering  law  according  to  the  same  rules.  The  law 
applied  to  disputes  arising  between  citizens  and  non- 
citizens  became  more  copious  and  definite.  The  pro- 
vincial Edicts  expanded  and  became  well  settled  as 
respects  the  larger  part  of  their  contents.  So  by 
degrees  the  law  of  the  provinces  was  imperceptibly 
Romanized  in  its  general  spirit  and  leading  conceptions, 
probably  also  in  such  particular  departments  as  the 
original  local  law  of  the  particular  province  had  not 
fully  covered.  But  the  process  did  not  proceed  at  the 
same  rate  in  all  the  provinces,  nor  did  it  result  in  a  uni- 
form legal  product,  for  a  good  deal  of  local  customary 
law  remained,  and  this  customary  law  of  course  differed 
in  different  provinces.  In  the  Hellenic  and  Hellenized 
countries  the  pre-existing  law  was  naturally  fuller  and 
stronger  than  in  the  West ;  and  it  held  its  ground  more 
effectively  than  the  ruder  usages  of  Gauls  or  Spaniards, 
obtaining  moreover  a  greater  respect  from  the  Romans, 
who  felt  their  intellectual  debt  to  the  Greeks. 

It  may  be  asked  what  direct  legislation  there  was 
during  this  period  for  the  provinces.  Did  the  Roman 
Assembly  either  pass  statutes  for  them,  as  Parliament 
has  sometimes  done  for  India,  or  did  the  Assembly 
establish  in  each  province  some  legislative  authority  ? 
So  far  as  private  law  went  Rome  did  neither  during 
the  republican  period1.  The  necessity  was  not  felt, 

1  The  Lex  Sempronia  mentioned  by  Livy,  xxxv.  7,  seems  to  be  an  exception, 
due  to  very  special  circumstances. 


82  ROMAN  AND  ENGLISH  LAW 

because  any  alterations  made  in  Roman  law  proper 
altered  it  for  Roman  citizens  who  dwelt  in  the  pro- 
vinces no  less  than  for  those  in  Italy,  while  as  to  pro- 
vincial aliens,  the  Edict  of  the  governor  and  the  rules 
which  the  practice  of  his  courts  established  were  suffi- 
cient to  introduce  any  needed  changes.  But  the  Senate 
issued  decrees  intended  to  operate  in  the  provinces, 
and  when  the  Emperors  began  to  send  instructions  to 
their  provincial  governors  or  to  issue  declarations  of 
their  will  in  any  other  form,  these  had  the  force  of  law, 
and  constituted  a  body  of  legislation,  part  of  which  was 
general,  while  part  was  special  to  the  province  for  which 
it  was  issued. 

Meantime — and  I  am  now  speaking  particularly  of 
the  three  decisively  formative  centuries  from  B.  c.  150 
to  A.  D.  150 — another  process  had  been  going  on  even 
more  important.  The  Roman  law  itself  had  been 
changing  its  character,  had  been  developing  from  a 
rigid  and  highly  technical  system,  archaic  in  its  forms 
and  harsh  in  its  rules,  preferring  the  letter  to  the  spirit, 
and  insisting  on  the  strict  observance  of  set  phrases,  into 
a  liberal  and  elastic  system,  pervaded  by  the  principles 
of  equity  and  serving  the  practical  convenience  of  a 
cultivated  and  commercial  community.  The  nature  of 
this  process  will  be  found  described  in  other  parts  of 
this  volume1.  Its  result  was  to  permeate  the  original 
law  of  Rome  applicable  to  citizens  only  (ius  civile)  with 
the  law  which  had  been  constructed  for  the  sake  of  deal- 
ing with  aliens  (ius  gentium),  so  that  the  product  was  a 
body  of  rules  fit  to  be  used  by  any  civilized  people,  as 
being  grounded  in  reason  and  utility,  while  at  the  same 
time  both  copious  in  quantity  and  refined  in  quality. 

This  result  had  been  reached  about  A.  D.  150,  by  which 
time  the  laws  of  the  several  provinces  had  also  been 
largely  Romanized.  Thus  each  body  of  law — if  we 
may  venture  for  this  purpose  to  speak  of  provincial  law 
as  a  whole — had  been  drawing  nearer  to  the  other. 

1  See  Essay  XI,  and  Essay  XIV,  p.  706. 


ROMAN  AND  ENGLISH  LAW  83 

The  old  law  of  the  city  of  Rome  had  been  expanded 
and  improved  till  it  was  fit  to  be  applied  to  the  pro- 
vinces. The  various  laws  of  the  various  provinces  had 
been  constantly  absorbing  the  law  of  the  city  in  the 
enlarged  and  improved  form  latterly  given  to  it.  Thus 
when  at  last  the  time  for  a  complete  fusion  arrived 
the  differences  between  the  two  had  been  so  much  re- 
duced that  the  fusion  took  place  easily  and  naturally, 
with  comparatively  little  disturbance  of  the  state  of 
things  already  in  existence.  One  sometimes  finds  on 
the  southern  side  of  the  Alps  two  streams  running  in 
neighbouring  valleys.  One  which  has  issued  from  a 
glacier  slowly  deposits  as  it  flows  over  a  rocky  bed 
the  white  mud  which  it  brought  from  its  icy  cradle. 
The  other  which  rose  from  clear  springs  gradually 
gathers  colouring  matter  as  in  its  lower  course  it  cuts 
through  softer  strata  or  through  alluvium.  When  at  last 
they  meet,  the  glacier  torrent  has  become  so  nearly 
clear  that  the  tint  of  its  waters  is  scarcely  distinguishable 
from  that  of  the  originally  bright  but  now  slightly  turbid 
affluent.  Thus  Roman  and  provincial  law,  starting  from 
different  points  but  pursuing  a  course  in  which  their 
diversities  were  constantly  reduced,  would  seem  to  have 
become  so  similar  by  the  end  of  the  second  century 
A.  D.  that  there  were  few  marked  divergences,  so  far  as 
private  civil  rights  and  remedies  were  concerned,  be- 
tween the  position  of  citizens  and  that  of  aliens. 

Here,  however,  let  a  difference  be  noted.  The  power 
of  assimilation  was  more  complete  in  some  branches 
of  law  than  it  was  in  others ;  and  it  was  least  com- 
plete in  matters  where  old  standing  features  of  national 
character  and  feeling  were  present.  In  the  Law  of 
Property  and  Contract  it  had  advanced  so  far  as  to 
have  become,  with  some  few  exceptions1,  substantially 
identical.  The  same  may  be  said  of  Penal  Law  and 
the  system  of  legal  procedure.  But  in  the  Law  of 

1  Such  as  the  technical  peculiarities  of  the  Roman  stifulatio,  and  the  Greek 
syngraphe. 


84  ROMAN  AND  ENGLISH  LAW 

Family  Relations  and  in  that  of  Inheritance,  a  matter 
closely  connected  with  family  relations,  the  dissimi- 
larities were  still  significant;  and  we  shall  find  this 
phenomenon  reappearing  in  the  history  of  English  and 
Native  Law  in  India. 

Two  influences  which  I  have  not  yet  dwelt  upon  had 
been,  during  the  second  century,  furthering  the  assimi- 
lation. One  was  the  direct  legislation  of  the  Emperor 
which,  scanty  during  the  first  age  of  the  monarchy,  had 
now  become  more  copious,  and  most  of  which  was 
intended  to  operate  upon  citizens  and  aliens  alike.  The 
other  was  the  action  of  the  Emperor  as  supreme  judicial 
authority,  sometimes  in  matters  brought  directly  before 
him  for  decision,  more  frequently  as  judge  of  appeals 
from  inferior  tribunals.  He  had  a  council  called  the 
Consistory  which  acted  on  his  behalf,  because,  especially 
in  the  troublous  times  which  began  after  the  reign  of 
Marcus  Aurelius  and  presaged  the  ultimate  dissolution 
of  the  Empire,  the  sovereign  was  seldom  able  to  pre- 
side in  person.  The  judgements  of  the  Consistory,  being 
delivered  in  the  Emperor's  name  as  his,  and  having 
equal  authority  with  statutes  issued  by  him,  must  have 
done  much  to  make  law  uniform  in  all  the  provinces  and 
among  all  classes  of  subjects  1. 

III.  THE  ESTABLISHMENT  OF  ONE  LAW  FOR  THE 

EMPIRE. 

Finally,  in  the  beginning  of  the  third  century  A.  D.,  the 
decisive  step  was  taken.  The  distinction  between  citi- 
zens and  aliens  vanished  by  the  grant  of  full  citizen- 
ship to  all  subjects  of  the  Empire,  a  grant  however 
which  may  have  been,  in  the  first  instance,  applied 
only  to  organized  communities,  and  not  also  to  the 
backward  sections  of  the  rural  population,  in  Corsica, 

1  These  decreta  of  the  Emperor  were  reckoned  among  his  Constitutiones  (as  to 
which  see  Essay  XIV,  p.  720  sqq.).  There  does  not  seem  to  have  been  any  public 
record  kept  and  published  of  them,  but  many  of  them  would  doubtless  become 
diffused  through  the  law  schools  and  otherwise.  The  first  regular  collections  of 
imperial  constitutions  known  to  us  belong  to  a  later  time. 


ROMAN  AND  ENGLISH  LAW  85 

for  instance,  or  in  some  of  the  Alpine  valleys.  Our 
information  as  to  the  era  to  which  this  famous  Edict 
of  Caracalla's  belongs  is  lamentably  scanty.  Gaius,  who 
is  the  best  authority  for  the  middle  period  of  the  law, 
lived  fifty  or  sixty  years  earlier.  The  compilers  of 
Justinian's  Digest,  which  is  the  chief  source  of  our 
knowledge  for  the  law  as  a  whole,  lived  three  hundred 
years  later,  when  the  old  distinctions  between  the  legal 
rights  of  citizens  and  those  of  aliens  had  become  mere 
matters  of  antiquarian  curiosity.  These  compilers  there- 
fore modified  the  passages  of  the  older  jurists  which 
they  inserted  in  the  Digest  so  as  to  make  them  suit  their 
own  more  recent  time.  As  practical  men  they  were  right, 
but  they  have  lessened  the  historical  value  of  these 
fragments  of  the  older  jurists,  just  as  the  modern  restorer 
of  a  church  spoils  it  for  the  purposes  of  architectural 
history,  when  he  alters  it  to  suit  his  own  ideas  of 
beauty  or  convenience.  Still  it  may  fairly  be  assumed 
that  when  Caracalla's  grant  of  citizenship  was  made  the 
bulk  of  the  people,  or  at  least  of  the  town  dwellers,  had 
already  obtained  either  a  complete  or  an  incomplete 
citizenship  in  the  more  advanced  provinces,  and  that 
those  who  had  not  were  at  any  rate  enjoying  under  the 
provincial  Edicts  most  of  the  civil  rights  that  had  previ- 
ously been  confined  to  citizens,  such  for  instance  as  the 
use  of  the  so-called  Praetorian  Will  with  its  seven  seals. 
How  far  the  pre-existing  local  law  of  different  pro- 
vinces or  districts  was  superseded  at  one  stroke  by 
this  extension  of  citizenship,  or  in  other  words,  what 
direct  and  immediate  change  was  effected  in  the  modes 
of  jurisdiction  and  in  the  personal  relations  of  private 
persons,  is  a  question  which  we  have  not  the  means  of 
answering.  Apparently  many  difficulties  arose  which 
further  legislation,  not  always  consistent,  was  required 
to  deal  with  l.  One  would  naturally  suppose  that  where 

1  See  upon  this  subject  the  learned  and  acute  treatise  (by  which  I  have  been 
much  aided)  of  Dr.  L.  Mitteis,  Reichsrecht  und  Volksrecht  in  den  ostlichtn  Pro- 
vinzen  des  Rdmischen  Kaiserreichs,  Chap.  VI. 


86  ROMAN  AND  ENGLISH  LAW 

Roman  rules  differed  materially  from  those  which  a 
provincial  community  had  followed,  the  latter  could  not 
have  been  suddenly  substituted  for  the  former. 

A  point,  for  instance,  about  which  we  should  like 
to  be  better  informed  is  whether  the  Roman  rules 
which  gave  to  the  father  his  wide  power  over  his  chil- 
dren and  their  children  were  forthwith  extended  to  pro- 
vincial families.  The  Romans  themselves  looked  upon 
this  paternal  power  as  an  institution  peculiar  to  them- 
selves. To  us  moderns,  and  especially  to  Englishmen 
and  Americans,  it  seems  so  oppressive  that  we  cannot 
but  suppose  it  was  different  in  practice  from  what  it 
looks  on  paper.  And  although  it  had  lost  some  of  its  old 
severity  by  the  time  of  the  Antonines,  one  would  think 
that  communities  which  had  not  grown  up  under  it 
could  hardly  receive  it  with  pleasure. 

From  the  time  of  Caracalla  (A.  D.  211-217)  down  till 
the  death  of  Theodosius  the  Great  (A.  D.  395)  the  Empire 
had  but  one  law.  There  was  doubtless  a  certain  amount 
of  special  legislation  for  particular  provinces,  and  a 
good  deal  of  customary  law  peculiar  to  certain  provinces 
or  parts  of  them.  Although  before  the  time  of  Justinian 
it  would  seem  that  every  Roman  subject,  except  the 
half-barbarous  peoples  on  the  frontiers,  such  as  the 
Soanes  and  Abkhasians  of  the  Caucasus  or  the  Ethiopic 
tribes  of  Nubia,  and  except  a  very  small  class  of  freed- 
men,  was  in  the  enjoyment  of  Roman  citizenship,  with 
private  rights  substantially  the  same,  yet  it  is  clear 
that  in  the  East  some  Roman  principles  and  maxims 
were  never  fully  comprehended  by  the  mass  of  the  in- 
habitants and  their  legal  advisers  of  the  humbler  sort, 
while  other  principles  did  not  succeed  in  displacing 
altogether  the  rules  to  which  the  people  were  attached. 
We  have  evidence  in  recently  recovered  fragments  of 
an  apparently  widely  used  law-book,  Syriac  and  Arme- 
nian copies  of  which  remain,  that  this  was  the  case  in  the 
Eastern  provinces,  and  no  doubt  it  was  so  in  others  also. 
In  Egypt,  for  instance,  it  may  be  gathered  from  the 


ROMAN  AND  ENGLISH   LAW  87 

fragments  of  papyri  which  are  now  being  published, 
that  the  old  native  customs,  overlaid  or  re-moulded  to 
some  extent  by  Greek  law,  held  their  ground  even  down 
to  the  sixth  or  seventh  century1.  Still,  after  making 
all  allowance  for  these  provincial  variations,  philosophic 
jurisprudence  and  a  levelling  despotism  had  done  their 
work,  and  given  to  the  civilized  world,  for  the  first  and 
last  time  in  its  history,  one  harmonious  body  of  legal 
rules. 

The  causes  which  enabled  the   Romans  to  achieve 
this  result  were,  broadly  speaking,  the  five  following: — 

(1)  There  was  no  pre-existing  body  of  law  deeply 
rooted  and  strong  enough  to  offer  resistance  to  the 
spread  of  Roman  law.    Where  any  highly  developed  sys- 
tem of  written  rules  or  customs  existed,  it  existed  only 
in  cities,  such  as  those  of  the  Greek  or  Graecized  pro- 
vinces on  both  sides  of  the  Aegean.    The  large  countries, 
Pontus,  for  instance,    or  Macedonia  or  Gaul,  were  in  a 
legal  sense  unorganized  or  backward.    Thus  the  Romans 
had,  if  not  a  blank  sheet  to  write  on,  yet  no  great  difficulty 
in  overspreading  or  dealing  freely  with  what  they  found. 

(2)  There  were  no  forms  of  faith  which  had  so  inter- 
laced religious   feelings  and  traditions   with  the   legal 
notions  and  customs  of  the  people  as  to  give   those 
notions  and  customs  a  tenacious  grip  on  men's  affection. 
Except  among  the  Jews,  and  to  some  extent  among  the 
Egyptians,  Rome  had  no  religious  force  to  overcome 
such  as  Islam  and  Hinduism  present  in  India. 

(3)  The  grant  of  Roman  citizenship  to  a  community 
or  an  individual  was  a  privilege  highly  valued,  because 
it  meant  a  rise  in  social  status  and  protection  against 

1  This  is  carefully  worked  out  both  as  to  Syria  and  to  Egypt  by  Dr.  Mitteis,  op.  cit. 
He  thinks  (pp.  30-33)  that  the  law  of  the  Syrian  book,  where  it  departs  from  pure 
Roman  law  as  we  find  it  in  the  Corpus  Juris,  is  mainly  of  Greek  origin,  though 
with  traces  of  Eastern  custom.  He  also  suggests  that  the  opposition,  undoubtedly 
strong,  of  the  Eastern  Monophysites  to  the  Orthodox  Emperors  at  Constantinople 
may  have  contributed  to  make  the  Easterns  cling  the  closer  to  their  own  cus- 
tomary law.  The  Syrian  book  belongs  to  the  fifth  century  A.D.,  and  is  therefore 
earlier  than  Justinian  (Bruns  und  Sachau,  Syrisch-romisches  Rechtsbuch  aus  dem 
funften  Jahrh  u  nderf). 


88  ROMAN  AND  ENGLISH  LAW 

arbitrary  treatment  by  officials.  Hence  even  those  who 
might  have  liked  their  own  law  better  were  glad  to  part 
with  it  for  the  sake  of  the  immunities  of  a  Roman  citizen. 

(4)  The  Roman  governor  and  the  Roman  officials  in 
general   had   an   administrative   discretion   wider   than 
officials   enjoy  under  most  modern  governments,  and 
certainly  wider  than  either  a  British  or  an  United  States 
legislature  would  delegate  to  any  person.     Hence  Ro- 
man governors  could  by  their  Edicts  and  their  judi- 
cial action  mould  the  law  and  give  it  a  shape  suitable 
to  the  needs  of  their  province  with  a  freedom  of  hand- 
ling which  facilitated  the  passage  from  local  law  or  cus- 
tom to  the  jurisprudence  of  the  Empire  generally. 

(5)  Roman  law  itself,  i.e.  the  law  of  the  city,  went  on 
expanding  and  changing,   ridding  itself   of   its   purely 
national  and  technical  peculiarities,  till  it  became  fit  to 
be  the  law  of  the  whole  world.    This  process  kept  step 
with,  and  was  the  natural  expression  of,  the  political 
and  social  assimilation  of  Rome  to  the  provinces  and 
of  the  provinces  to  Rome. 

At  the  death  of  Theodosius  the  Great  the  Roman  Em- 
pire was  finally  divided  into  an  Eastern  and  a  Western 
half;  so  that  thenceforward  there  were  two  legislative 
authorities.  For  the  sake  of  keeping  the  law  as  uniform 
as  possible,  arrangements  were  made  for  the  transmis- 
sion by  each  Emperor  to  the  other  of  such  ordinances 
as  he  might  issue,  in  order  that  these  might  be,  if 
approved,  issued  for  the  other  half  of  the  Empire. 
These  arrangements,  however,  were  not  fully  carried 
out :  and  before  long  the  Western  Empire  drifted  into 
so  rough  a  sea  that  legislation  practically  stopped.  The 
great  Codex  of  Theodosius  the  Second  (a  collection  of 
imperial  enactments  published  in  A.D.  438)  was  however 
promulgated  in  the  Western  as  well  as  in  the  Eastern 
part  of  the  Empire,  whereas  the  later  Codex  and  Digest 
of  Justinian,  published  nearly  a  century  later,  was  en- 
acted only  for  the  East,  though  presently  extended  (by 
re-conquest)  to  Italy,  Sicily,  and  Africa.  Parts  of  the 


ROMAN  AND  ENGLISH  LAW  89 

Theodosian  Codex  were  embodied  in  the  manuals  of 
law  made  for  the  use  of  their  Roman  subjects  by  some 
of  the  barbarian  kings.  It  continued  to  be  recognized 
in  the  Western  provinces  after  the  extinction  of  the 
imperial  line  in  the  West  in  A.  D.  476:  and  was  indeed, 
along  with  the  manuals  aforesaid,  the  principal  source 
whence  during  a  long  period  the  Roman  population 
drew  their  law  in  the  provinces  out  of  which  the  king- 
doms of  the  Franks,  Burgundians,  and  Visigoths  were 
formed. 

Then  came  the  torpor  of  the  Dark  Ages. 


IV.   THE  EXTENSION  OF  ROMAN  LAW  AFTER  THE  FALL 
OF  THE  WESTERN  EMPIRE. 

Upon  the  later  history  of  the  Roman  law  and  its 
diffusion  through  the  modern  world  I  can  but  briefly 
touch,  for  I  should  be  led  far  away  from  the  special  topic 
here  considered.  The  process  of  extension  went  on  in 
some  slight  measure  by  conquest,  but  mainly  by  peaceful 
means,  the  less  advanced  peoples,  who  had  no  regular 
legal  system  of  their  own,  being  gradually  influenced 
by  and  learning  from  their  more  civilized  neighbours  to 
whom  the  Roman  system  had  descended.  The  light  of 
legal  knowledge  radiated  forth  from  two  centres,  from 
Constantinople  over  the  Balkanic  and  Euxine  countries 
between  the  tenth  and  the  fifteenth  centuries,  from 
Italy  over  the  lands  that  lay  north  and  west  of  her 
from  the  twelfth  to  the  sixteenth  century.  Thereafter 
it  is  Germany,  Holland,  and  France  that  have  chiefly 
propagated  the  imperial  law,  Germany  by  her  univer- 
sities and  writers,  France  and  Holland  both  through 
their  jurists  and  as  colonizing  powers. 

In  the  history  of  the  mediaeval  and  modern  part  of 
the  process  of  extension  five  points  or  stages  of  especial 
import  may  be  noted. 

The  first  is  the  revival  of  legal  study  which  began  in 


90  ROMAN  AND  ENGLISH  LAW 

Italy  towards  the  end  of  the  eleventh  century  A.  D.,  and 
the  principal  agent  in  which  was  the  school  of  Bologna, 
famous  for  many  generations  thereafter.  From  that 
date  onward  the  books  of  Justinian,  which  had  before 
that  time  been  superseded  in  the  Eastern  Empire,  were 
lectured  and  commented  on  in  the  universities  of  Italy, 
France,  Spain,  England,  Germany,  and  have  continued 
to  be  so  till  our  own  day.  They  formed,  except  in 
England  where  from  the  time  of  Henry  the  Third 
onwards  they  had  a  powerful  and  at  last  a  victorious 
rival  in  the  Common  Law,  the  basis  of  all  legal  training 
and  knowledge. 

The  second  is  the  creation  of  that  vast  mass  of  rules 
for  the  guidance  of  ecclesiastical  matters  and  courts — 
courts  whose  jurisdiction  was  in  the  Middle  Ages  far 
wider  than  it  is  now — which  we  call  the  Canon  Law. 
These  rules,  drawn  from  the  canons  of  Councils  and 
decrees  of  Popes,  began  to  be  systematized  during 
the  twelfth  century,  and  were  first  consolidated  into 
an  ordered  body  by  Pope  Gregory  the  Ninth  in  the 
middle  of  the  thirteenth1.  They  were  so  largely  based 
on  the  Roman  law  that  we  may  describe  them  as  being 
substantially  a  development  of  it,  partly  on  a  new  side, 
partly  in  a  new  spirit,  and  though  they  competed  with 
the  civil  law  of  the  temporal  courts,  they  also  extended 
the  intellectual  influence  of  that  law. 

The  third  is  the  acceptance  of  the  Roman  law  as 
being  of  binding  authority  in  countries  which  had  not 
previously  owned  it,  and  particularly  in  Germany  and 
Scotland.  It  was  received  in  Germany  because  the 
German  king  (after  the  time  of  Otto  the  Great)  was 
deemed  to  be  also  Roman  Emperor,  the  legitimate  suc- 
cessor of  the  far-off  assemblies  and  magistrates  and 
Emperors  of  old  Rome;  and  its  diffusion  was  aided 
by  the  fact  that  German  lawyers  had  mostly  received 
their  legal  training  at  Italian  universities.  It  came  in 
gradually  as  subsidiary  to  Germanic  customs,  but  the 

1  Other  parts  were  added  later. 


ROMAN  AND  ENGLISH  LAW  91 

judges,  trained  in  Italy  in  the  Roman  system,  required 
the  customs  to  be  proved,  and  so  by  degrees  Roman 
doctrines  supplanted  them,  though  less  in  the  Saxon 
districts,  where  a  native  law-book,  the  Sachscnspiegcl, 
had  already  established  its  influence.  The  acceptance 
nowhere  went  so  far  as  to  supersede  the  whole  custo- 
mary law  of  Germany,  whose  land-rights,  for  instance, 
retained  their  feudal  character.  The  formal  declaration 
of  the  general  validity  of  the  Corpus  Inris  in  Germany 
is  usually  assigned  to  the  foundation  by  the  Emperor 
Maximilian  I,  in  1495,  °f  tne  Imperial  Court  of  Justice 
(Reichskammergericht).  As  Holland  was  then  still  a 
part  of  the  Germanic  Empire,  as  well  as  of  the  Bur- 
gundian  inheritance,  it  was  the  law  of  Holland  also,  and 
so  has  become  the  law  of  Java,  of  Celebes,  and  of  South 
Africa.  In  Scotland  it  was  adopted  at  the  foundation  of 
the  Court  of  Session,  on  the  model  of  the  Parlement  of 
Paris,  by  King  James  the  Fifth.  Political  antagonism  to 
England  and  political  attraction  to  France,  together  with 
the  influence  of  the  Canonists,  naturally  determined  the 
King  and  the  Court  to  follow  the  system  which  prevailed 
on  the  European  continent. 

The  fourth  stage  is  that  of  codification.  In  many 
parts  of  Gaul,  though  less  in  Provence  and  Languedoc, 
the  Roman  law  had  gone  back  into  that  shape  of  a  body 
of  customs  from  which  it  had  emerged  a  thousand  years 
before ;  and  in  Northern  and  Middle  Gaul  some  customs, 
especially  in  matters  relating  to  land,  were  not  Roman. 
At  last,  under  Lewis  the  Fourteenth,  a  codifying  process 
set  in.  Comprehensive  Ordinances,  each  covering  a 
branch  of  law,  began  to  be  issued  from  1667  down  to 
1747.  These  operated  throughout  France,  and,  being 
founded  on  Roman  principles,  further  advanced  the 
work,  already  prosecuted  by  the  jurists,  of  Romanizing 
the  customary  law  of  Northern  France.  That  of  South- 
ern France  (the  pays  du  droit  ccrif)  had  been  more 
specifically  Roman,  for  the  South  had  been  less  affected 
by  Frankish  conquest  and  settlement.  The  five  Codes 


98  ROMAN  AND  ENGLISH  LAW 

promulgated  by  Napoleon  followed  in  1803  to  iSio1. 
Others  reproducing  them  with  more  or  less  divergence 
have  been  enacted  in  other  Romance  countries. 

In  Prussia,  Frederick  the  Second  directed  the  pre- 
paration of  a  Code  which  became  law  after  his  death, 
in  1794.  From  1848  onwards  parts  of  the  law  of  Ger- 
many (which  differed  in  different  parts  of  the  country) 
began  to  be  codified,  being  at  first  enacted  by  the  several 
States,  each  for  itself,  latterly  by  the  legislature  of  the 
new  Empire.  Finally,  after  twenty-two  years  of  labour, 
a  new  Code  for  the  whole  German  Empire  was  settled, 
was  passed  by  the  Chambers,  and  came  into  force  on  the 
first  of  January,  1900.  It  does  not,  however,  altogether 
supersede  pre-existing  local  law.  This  Code,  far  from 
being  pure  Roman  law,  embodies  many  rules  due  to 
mediaeval  custom  (especially  custom  relating  to  land- 
rights)  modernized  to  suit  modern  conditions,  and  also 
a  great  deal  of  post-mediaeval  legislation2.  Some  Ger- 
man jurists  complain  that  it  is  too  Teutonic ;  others  that 
it  is  not  Teutonic  enough.  One  may  perhaps  conclude 
from  these  opposite  criticisms  that  the  codifiers  have 
made  a  judiciously  impartial  use  of  both  Germanic  and 
Roman  materials. 

Speaking  broadly,  it  may  be  said  that  the  groundwork 
of  both  the  French  and  the  German  Codes — that  is  to 
say  their  main  lines  and  their  fundamental  legal  con- 
ceptions— is  Roman.  Just  as  the  character  and  genius 
of  a  language  are  determined  by  its  grammar,  irre- 
spective of  the  number  of  foreign  words  it  may  have 
picked  up,  so  Roman  law  remains  Roman  despite  the 
accretion  of  the  new  elements  which  the  needs  of  modern 
civilization  have  required  it  to  accept. 

The  fifth  stage  is  the  transplantation  of  Roman  law  in 

1  Among  the  States  in  which  the  French  Code  has  been  taken  as  a  model  are 
Belgium,  Italy,  Spain,  Portugal,  Mexico,  and  Chili.  See  an  article  by  Mr.  E. 
Schuster  in  the  Law  Quarterly  Review  for  January,  1896. 

3  An  interesting  sketch  of  the  '  reception '  of  Roman  law  in  Germany  (by  Dr. 
Erwin  Gruber)  may  be  found  in  the  Introduction  to  Mr.  Ledlie's  translation  of 
Sohm's  Institutionen  (ist  edition). 


A'(>.l/.l.\     l\/>   ENGLISH    LAW  93 

its  modern  forms  to  new  countries.  The  Spaniards  and 
Portuguese,  the  French,  the  Dutch,  and  the  Germans 
have  carried  their  respective  systems  of  law  with  them 
into  the  territories  they  have  conquered  and  the  colonies 
they  have  founded;  and  the  law  has  often  remained 
unchanged  even  when  the  territory  or  the  colony  has 
passed  to  new  rulers.  For  law  is  a  tenacious  plant, 
even  harder  to  extirpate 'than  is  language;  and  new 
rulers  have  generally  had  the  sense  to  perceive  that  they 
had  less  to  gain  by  substituting  their  own  law  for  that 
which  they  found  than  they  had  to  lose  by  irritating 
their  new  subjects.  Thus,  Roman-French  law  survives 
in  Quebec  (except  in  commercial  matters)  and  in  Loui- 
siana, Roman-Dutch  law  m  Guiana  and  South  Africa. 

The  cases  of  Poland,  Russia  and  the  Scandinavian 
kingdoms  are  due  to  a  process  different  from  any  of 
those  hitherto  described.  The  law  of  Russia  was  ori- 
ginally Slavonic  custom,  influenced  to  some  extent  by 
the  law  of  the  Eastern  Roman  Empire,  whence  Rus- 
sia took  her  Christianity  and  her  earliest  literary  im- 
pulse. In  its  present  shape,  while  retaining  in  many 
points  a  genuinely  Slavonic  character,  and  of  course  far 
less  distinctly  Roman  than  is  the  law  of  France,  it  has 
drawn  so  much,  especially  as  regards  the  principles  of 
property  rights  and  contracts,  from  the  Code  Napoleon 
and  to  a  less  degree  from  Germany,  that  it  may  be 
described  as  being  Roman  '  at  the  second  remove,' 
and  reckoned  as  an  outlying  and  half-assimilated  pro- 
vince, so  to  speak,  of  the  legal  realm  of  Rome.  Poland, 
lying  nearer  Germany,  and  being,  as  a  Catholic  country, 
influenced  by  the  Canon  Law,  as  well  as  by  German 
teaching  and  German  books,  adopted  rather  more  of 
Roman  doctrine  than  Russia  did1.  Her  students  learnt 
Roman  law  first  at  Italian,  afterwards  at  German  Univer- 

1  In  Lithuania  the  rule  was  that  where  no  express  provision  could  be  found 
governing  a  case,  recourse  should  be  had  to  '  the  Christian  laws.'  Speaking  gene- 
rally, one  may  say  that  it  was  by  and  with  Christianity  that  Roman  law  made 
its  way  in  the  countries  to  the  east  of  Germany  and  to  the  north  of  the  Eastern 
Empire. 


94  ROMAN  AND  ENGLISH  LAW 

sities,  and  when  they  became  judges,  naturally  applied  its 
principles.  The  Scandinavian  countries  set  out  with  a 
law  purely  Teutonic,  and  it  is  chiefly  through  the  German 
Universities  and  the  influence  of  German  juridical  litera- 
ture that  Roman  principles  have  found  their  way  in  and 
coloured  the  old  customs.  Servia,  Bulgaria  and  Ru- 
mania, on  the  other  hand,  were  influenced  during  the 
Middle  Ages  by  the  law  of  the  Eastern  Empire,  whence 
they  drew  their  religion  and  their  culture.  Thus  their 
modern  law,  whose  character  is  due  partly  to  these  By- 
zantine influences — of  course  largely  affected  by  Slavo- 
nic custom — and  partly  to  what  they  have  learnt  from 
France  and  Austria,  may  also  be  referred  to  the  Roman 
type. 

V.  THE  DIFFUSION  OF  ENGLISH  LAW. 

England,  like  Rome,  has  spread  her  law  over  a  large 
part  of  the  globe.  But  the  process  has  been  in  her 
case  not  only  far  shorter  but  far  simpler.  The  work 
has  been  (except  as  respects  Ireland)  effected  within 
the  last  three  centuries ;  and  it  has  been  effected  (except 
as  regards  Ireland  and  India)  not  by  conquest  but  by 
peaceful  settlement.  This  is  one  of  the  two  points  in 
which  England  stancis  contrasted  with  Rome.  The  other 
is  that  her  own  law  has  not  been  affected  by  the  process. 
It  has  changed  within  the  seven  centuries  that  lie  be- 
tween King  Henry  the  Second  and  the  present  day,  al- 
most if  not  quite  as  much  as  the  law  of  Rome  changed  in 
the  seven  centuries  between  the  enactment  of  the  Twelve 
Tables  and  the  reign  of  Caracalla.  But  these  changes 
have  not  been  due^  as  those  I  have  described  in  the 
Roman  Empire  were  largely  due,  to  the  extension  of  the 
law  of  England  to  new  subjects.  They  would  apparently 
have  come  to  pass  in  the  same  way  and  to  the  same 
extent  had  the  English  race  remained  confined  to  its 
own  island. 

England  has  extended  her  law  over  two  classes  of 
territories. 


ROMAN  AND  ENGLISH  LAW  95 

The  first  includes  those  which  have  been  peacefully 
settled  by  Englishmen — North  America  (except  Lower 
Canada),  Australia,  New  Zealand,  Fiji,  the  Falkland 
Isles.  All  of  these,  except  the  United  States,  have  re- 
mained politically  connected  with  the  British  Crown. 

The  second  includes  conquered  territories.  In  some 
of  these,  such  as  Wales,  Ireland,  Gibraltar,  the  Canadian 
provinces  of  Ontario  and  Nova  Scotia,  and  several  of 
the  West  India  Islands,  English  law  has  been  established 
as  the  only  system,  applicable  to  all  subjects  1.  In  others, 
such  as  Malta,  Cyprus,  Singapore,  and  India,  English  law 
is  applied  to  Englishmen  and  native  law  to  natives,  the 
two  systems  being  worked  concurrently.  Among  these 
cases,  that  which  presents  problems  of  most  interest 
and  difficulty  is  India.  But  before  we  consider  India,  a 
few  words  may  be  given  to  the  territories  of  the  former 
class.  They  are  now  all  of  them,  except  the  West 
Indies,  Fiji  and  the  Falkland  Isles,  self-governing,  and 
therefore  capable  of  altering  their  own  law.  This  they  do 
pretty  freely.  The  United  States  have  now  forty-nine 
legislatures  at  work,  viz.  Congress,  forty-five  States, 
and  three  Organized  Territories.  They  have  turned  out 
an  immense  mass  of  law  since  their  separation  from  Eng- 
land. But  immense  as  it  is,  and  bold  as  are  some  of  the 
experiments  which  may  be  found  in  it,  the  law  of  the 
United  States  remains  (except  of  course  in  Louisiana) 
substantially  English  law.  An  English  barrister  would 
find  himself  quite  at  home  in  any  Federal  or  State  Court, 
and  would  have  nothing  new  to  master,  except  a  few 
technicalities  of  procedure  and  the  provisions  of  any 
statutes  which  might  affect  the  points  he  had  to  argue. 
And  the  patriarch  of  American  teachers  of  law  (Profes- 
sor C.  C.  Langdell  of  the  Law  School  in  Harvard  Univer- 

1  It  has  undergone  little  or  no  change  in  the  process.  The  Celtic  customs  dis- 
appeared in  Wales ;  the  Brehon  law,  though  it  was  contained  in  many  written 
texts  and  was  followed  over  the  larger  part  of  Ireland  till  the  days  of  the  Tudors, 
has  left  practically  no  trace  in  the  existing  law  of  Ireland,  which  is,  except  as 
respects  land,  some  penal  matters,  and  marriage,  virtually  identical  with  the  law 
of  England. 


96  ROMAN  AND  ENGLISH  LAW 

sity),  consistently  declining  to  encumber  his  expositions 
with  references  to  Federal  or  State  Statutes,  continues 
to  discourse  on  the  Common  Law  of  America,  which 
differs  little  from  the  Common  Law  of  England.  The 
old  Common  Law  which  the  settlers  carried  with  them 
in  the  seventeenth  century  has  of  course  been  developed 
or  altered  by  the  decisions  of  American  Courts.  These, 
however,  have  not  affected  its  thoroughly  English  cha- 
racter. Indeed,  the  differences  between  the  doctrines 
enounced  by  the  Courts  of  different  States  are  some- 
times just  as  great  as  the  differences  between  the  views 
of  the  Courts  of  Massachusetts  or  New  Jersey  and  those 
of  Courts  in  England. 

The  same  is  true  of  the  self-governing  British  colonies. 
In  them  also  legislation  has  introduced  deviations  from 
the  law  of  the  mother  country.  More  than  forty  years 
ago  New  Zealand,  for  instance,  repealed  the  Statute  of 
Uses,  which  is  the  corner-stone  of  English  conveyancing ; 
and  the  Australian  legislatures  have  altered  (among 
other  things)  the  English  marriage  law.  But  even  if  the 
changes  made  by  statute  had  been  far  greater  than  they 
have  been,  and  even  if  there  were  not,  as  there  still  is,  a 
right  of  appeal  from  the  highest  Courts  of  these  colonies 
to  the  Crown  in  Council,  their  law  should  still  remain, 
in  all  its  essential  features,  a  genuine  and  equally  legiti- 
mate offspring  of  the  ancient  Common  Law. 

We  come  now  to  the  territories  conquered  by  Eng- 
land, and  to  which  she  has  given  her  law  whether  in 
whole  or  in  part.  Among  these  it  is  only  of  India  that 
I  shall  speak,  as  India  presents  the  phenomena  of  contact 
between  the  law  of  the  conqueror  and  that  of  the  con- 
quered on  the  largest  scale  and  in  the  most  instructive 
form.  What  the  English  have  done  in  India  is  being 
done  or  will  have  to  be  done,  though  nowhere  else  on 
so  vast  a  scale,  by  the  other  great  nations  which  have 
undertaken  the  task  of  ruling  and  of  bestowing  what  are 
called  the  blessings  of  civilization  upon  the  backward 
races.  Russia,  France,  Germany,  and  now  the  United 


ROMAN  AND  ENGLISH  LAW  97 

States  also,  all  see  this  task  before  them.  To  them  there- 
fore, as  well  as  to  England,  the  experience  of  the  British 
Government  in  India  may  be  profitable. 

VI.  ENGLISH  LAW  IN  INDIA. 

When  the  English  began  to  conquer  India  they  found 
two  great  systems  of  customary  law  in  existence  there, 
the  Musulman  and  the  Hindu.  There  were  other 
minor  bodies  of  custom,  prevailing  among  particular 
sects,  but  these  may  for  the  present  be  disregarded. 
Musulman  law  regulated  the  life  and  relations  of  all 
Musulmans ;  and  parts  of  it,  especially  its  penal  pro- 
visions, were  also  applied  by  the  Musulman  potentates 
to  their  subjects  generally,  Hindus  included.  The 
Musulman  law  had  been  most  fully  worked  out  in  the 
departments  of  family  relations  and  inheritance,  in  some 
few  branches  of  the  law  of  contract,  such  as  money  loans 
and  mortgages  and  matters  relating  to  sale,  and  in 
the  doctrine  of  charitable  or  pious  foundations  called 
Wakuf. 

In  the  Hindu  principalities,  Hindu  law  was  dominant, 
and  even  where  the  sovereign  was  a  Musulman,  the 
Hindu  law  of  family  relations  and  of  inheritance  was 
recognized  as  that  by  which  Hindus  lived.  There  were 
also  of  course  many  land  customs,  varying  from  district 
to  district,  which  both  Hindus  and  Musulmans  observed, 
as  they  were  not  in  general  directly  connected  with 
religion.  In  some  regions,  such  as  Oudh  and  what  are 
now  the  North-West  provinces,  these  customs  had  been 
much  affected  by  the  land  revenue  system  of  the  Mogul 
Emperors.  It  need  hardly  be  said  that  where  Courts 
of  law  existed,  they  administered  an  exceedingly  rough 
and  ready  kind  of  justice,  or  perhaps  injustice,  for 
bribery  and  favouritism  were  everywhere  rampant. 

There  were  also  mercantile  customs,  which  were 
generally  understood  and  observed  by  traders,  and 
which,  with  certain  specially  Musulman  rules  recog- 
7 


98  ROMAN  AND  ENGLISH  LAW 

nized  in  Musulman  States,  made  up  what  there  was  of 
a  law  of  contracts. 

Thus  one  may  say  that  the  law  (other  than  purely 
religious  law)  which  the  English  administrators  in  the 
days  of  Give  and  Warren  Hastings  found  consisted  of — 

First,  a  large  and  elaborate  system  of  Inheritance 
and  Family  Law,  the  Musulman  pretty  uniform  through- 
out India,  though  in  some  regions  modified  by  Hindu 
custom,  the  Hindu  less  uniform.  Each  was  utterly 
unlike  English  law  and  incapable  of  being  fused  with 
it.  Each  was  closely  bound  up  with  the  religion  and 
social  habits  of  the  people.  Each  was  contained  in 
treatises  of  more  or  less  antiquity  and  authority,  some 
of  the  Hindu  treatises  very  ancient  and  credited  with 
almost  divine  sanction,  the  Musulman  treatises  of  course 
posterior  to  the  Koran,  and  consisting  of  commentaries 
upon  that  Book  and  upon  the  traditions  that  had  grown 
up  round  it. 

Secondly,  a  large  mass  of  customs  relating  to  the 
occupation  and  use  of  land  and  of  various  rights  con- 
nected with  tillage  and  pasturage,  including  water-rights, 
rights  of  soil-accretion  on  the  banks  of  rivers,  and 
forest-rights.  The  agricultural  system  and  the  revenue 
system  of  the  country  rested  upon  these  land  customs, 
which  were  of  course  mostly  unwritten  and  which  varied 
widely  in  different  districts. 

Thirdly,  a  body  of  customs,  according  to  our  ideas 
comparatively  scanty  and  undeveloped,  but  still  impor- 
tant, relating  to  the  transfer  and  pledging  of  property, 
and  to  contracts,  especially  commercial  contracts. 

Fourthly,  certain  penal  rules  drawn  from  Musulman 
law  and  more  or  less  enforced  by  Musulman  princes. 

Thus  there  were  considerable  branches  of  law  prac- 
tically non-existent.  There  was  hardly  any  law  of  civil 
and  criminal  procedure,  because  the  methods  of  justice 
were  primitive,  and  would  have  been  cheap,  but  for  the 
prevalence  of  corruption  among  judges  as  well  as  wit- 
nesses. There  was  very  little  of  the  law  of  Torts  or  Civil 


ROMAN  AND  ENGLISH  LAW  99 

Wrongs,  and  in  the  law  of  property  of  contracts  and  of 
crimes,  some  departments  were  wanting  or  in  a  rudimen- 
tary condition.  Of  a  law  relating  to  public  and  constitu- 
tional rights  there  could  of  course  be  no  question,  since 
no  such  rights  existed. 

In  this  state  of  facts  the  British  officials  took  the  line 
which  practical  men,  having  their  hands  full  of  other 
work,  would  naturally  take,  viz.  the  line  of  least  re- 
sistance. They  accepted  and  carried  on  what  they  found. 
Where  there  was  a  native  law,  they  applied  it,  Musul- 
man  law  to  Musulmans,  Hindu  law  to  Hindus,  and  in 
the  few  places  where  they  were  to  be  found,  Parsi  law 
to  Parsis,  Jain  law  to  Jains.  Thus  men  of  every  creed 
— for  it  was  creed,  not  race  nor  allegiance  by  which  men 
were  divided  and  classified  in  India — lived  each  accord- 
ing to  his  own  law,  as  Burgundians  and  Franks  and 
Romanized  Gauls  had  done  in  the  sixth  century  in  Eu- 
rope. The  social  fabric  was  not  disturbed,  for  the  land 
customs  and  the  rules  of  inheritance  were  respected, 
and  of  course  the  minor  officers,  with  whom  chiefly  the 
peasantry  came  in  contact,  continued  to  be  natives.  Thus 
the  villager  scarcely  felt  that  he  was  passing  under  the 
dominion  of  an  alien  power,  professing  an  alien  faith. 
His  life  flowed  on  in  the  same  equable  course  beside  the 
little  white  mosque,  or  at  the  edge  of  the  sacred  grove.  A 
transfer  of  power  from  a  Hindu  to  a  Musulman  sovereign 
would  have  made  more  difference  to  him  than  did  the 
establishment  of  British  rule;  and  life  was  more  placid 
than  it  would  have  been  under  either  a  rajah  or  a  sultan, 
for  the  marauding  bands  which  had  been  the  peasants' 
terror  were  soon  checked  by  European  officers. 

So  things  remained  for  more  than  a  generation.  So 
indeed  things  remain  still  as  respects  those  parts  of 
law  which  are  inwoven  with  religion,  marriage,  adop- 
tion (among  Hindus)  and  other  family  relations,  and 
with  the  succession  to  property.  In  all  these  matters 
native  law  continues  to  be  administered  by  the  Courts 
the  English  have  set  up;  and  when  cases  are  appealed 


100  ROMAN  AND  ENGLISH  LAW 

from  the  highest  of  those  Courts  to  the  Privy  Council 
in  England,  that  respectable  body  determines  the  true 
construction  to  be  put  on  the  Koran  and  the  Islamic 
Traditions,  or  on  passages  from  the  mythical  Manu,  in 
the  same  business-like  way  as  it  would  the  meaning  of 
an  Australian  statute1.  Except  in  some  few  points  to 
be  presently  noted,  the  Sacred  Law  of  Islam  and  that 
of  Brahmanism  remain  unpolluted  by  European  ideas. 
Yet  they  have  not  stood  unchanged,  for  the  effect  of 
the  more  careful  and  thorough  examination  which  the 
contents  of  these  two  systems  have  received  from  advo- 
cates, judges,  and  text-writers,  both  native  and  English, 
imbued  with  the  scientific  spirit  of  Europe,  has  been 
to  clarify  and  define  them,  and  to  develop  out  of  the  half- 
fluid  material  more  positive  and  rigid  doctrines  than  had 
been  known  before.  Something  like  this  may  probably 
have  been  done  by  the  Romans  for  the  local  or  tribal 
law  of  their  provinces. 

In  those  departments  in  which  the  pre-existing  cus- 
toms were  not  sufficient  to  constitute  a  body  of  law 
large  enough  and  precise  enough  for  a  civilized  Court 
to  work  upon,  the  English  found  themselves  obliged 
to  supply  the  void.  This  was  done  in  two  ways.  Some- 
times the  Courts  boldly  applied  English  law.  Sometimes 
they  supplemented  native  custom  by  common  sense, 
i.e.  by  their  own  ideas  of  what  was  just  and  fair.  The 
phrase  '  equity  and  good  conscience  '  was  used  to  em- 
body the  principles  by  which  judges  were  to  be  guided 
when  positive  rules,  statutory  or  customary,  were  not 
forthcoming.  To  a  magistrate  who  knew  no  law  at  all, 
these  words  would  mean  that  he  might  follow  his  own 
notions  of '  natural  justice/  and  he  would  probably  give 
more  satisfaction  to  suitors  than  would  his  more  learned 

1  It  is  related  that  a  hill  tribe  of  Kols,  in  Central  India,  had  a  dispute  with  the 
Government  of  India  over  some  question  of  forest-rights.  The  case  having  gone 
in  their  favour,  the  Government  appealed  to  the  Judicial  Committee.  Shortly 
afterwards  a  passing  traveller  found  the  elders  of  the  tribe  assembled  at  the  sacri- 
fice of  a  kid.  He  inquired  what  deity  was  being  propitiated,  and  was  told  that  it 
was  a  deity  powerful  but  remote,  whose  name  was  Privy  Council. 


ROMAN  AND   EMI  LI  s  II    L.\\V  101 

brother,  trying  to  apply  confused  recollections  of  Black- 
stone  or  Chitty.  In  commercial  matters  common  sense 
would  be  aided  by  the  usage  of  traders.  In  cases  of  Tort 
native  custom  was  not  often  available,  but  as  the  magi- 
strate who  dealt  out  substantial  justice  would  give  what 
the  people  had  rarely  obtained  from  the  native  courts, 
they  had  no  reason  to  complain  of  the  change.  As 
to  rules  of  evidence,  the  young  Anglo-Indian  civilian 
would,  if  he  were  wise,  forget  all  the  English  techni- 
calities he  might  have  learnt,  and  make  the  best  use 
he  could  of  his  mother-wit l. 

For  the  first  sixty  years  or  more  of  British  rule  there 
was  accordingly  little  or  no  attempt  to  Anglify  the  law 
of  India,  or  indeed  to  give  it  any  regular  and  systematic 
form.  Such  alterations  as  it  underwent  were  the 
natural  result  of  its  being  dispensed  by  Europeans. 
But  to  this  general  rule  there  were  two  exceptions, 
the  law  of  Procedure  and  the  law  of  Crimes.  Courts 
had  been  established  in  the  Presidency  towns  even 
before  the  era  of  conquest  began.  As  their  business 
increased  and  subordinate  Courts  were  placed  in  the 
chief  towns  of  the  annexed  provinces,  the  need  for  some 
regular  procedure  was  felt.  An  Act  of  the  British 
Parliament  of  A.D.  1781  empowered  the  Indian  Govern- 
ment to  make  regulations  for  the  conduct  of  the  pro- 
vincial Courts,  as  the  Court  at  Fort  William  (Calcutta) 
had  already  been  authorized  to  do  for  itself  by  an  Act 
of  17/3.  Thus  a  regular  system  of  procedure,  modelled 
after  that  of  England,  was  established ;  and  the  Act 
of  1781  provided  that  the  rules  and  forms  for  the  exe- 
cution of  process  were  to  be  accommodated  to  the 
religion  and  manners  of  the  natives. 

As  respects  penal  law,  the  English  began  by  adopt- 
ing that  which  the  Musulman  potentates  had  been  ac- 
customed to  apply.  But  they  soon  found  that  many 

1  For  the  facts  given  in  the  following  pages  I  am  much  indebted  to  the  singu- 
larly lucid  and  useful  treatise  of  Sir  C.  P.  Ilbert  (formerly  Legal  Member  of  the 
Viceroy's  Council)  entitled  The  Government  of  India. 


102  ROMAN  AND   ENGLISH  LAW 

of  its  provisions  were  such  as  a  civilized  and  nominally 
Christian  government  could  not  enforce.  Mutilation 
as  a  punishment  for  theft,  for  instance,  and  stoning 
for  sexual  offences,  were  penalties  not  suited  to  Euro- 
pean notions ;  and  still  less  could  the  principle  be 
admitted  that  the  evidence  of  a  non-Musulman  is  not 
receivable  against  one  of  the  Faithful.  Accordingly 
a  great  variety  of  regulations  were  passed  amending 
the  Musulman  law  of  crimes  from  an  English  point 
of  view.  In  Calcutta  the  Supreme  Court  did  not  hesi- 
tate to  apply  English  penal  law  to  natives ;  and  applied 
it  to  some  purpose  at  a  famous  crisis  in  the  fortunes  of 
Warren  Hastings  when  (in  1775)  it  hanged  Nuncomar 
for  forgery  under  an  English  statute  of  1728,  which  in 
the  opinion  of  many  high  authorities  of  a  later  time 
had  never  come  into  force  at  all  in  India.  It  was  inevi- 
table that  the  English  should  take  criminal  jurisdiction 
into  their  own  hands — the  Romans  had  done  the  same  in 
their  provinces — and  inevitable  also  that  they  should 
alter  the  penal  law  in  conformity  with  their  own  ideas. 
But  they  did  so  in  a  very  haphazard  fashion.  The  crimi- 
nal law  became  a  patchwork  of  enactments  so  con- 
fused that  it  was  the  first  subject  which  invited  codifica- 
tion in  that  second  epoch  of  English  rule  which  we  are 
now  approaching. 

Before  entering  on  this  remarkable  epoch,  one  must 
remember  that  the  English  in  India,  still  a  very  small 
though  important  class,  were  governed  entirely  by 
English  law.  So  far  as  common  law  and  equity  went, 
this  law  was  exactly  the  same  as  the  contemporaneous 
law  of  England.  But  it  was  complicated  by  the  fact  that 
a  number  of  Regulations,  as  they  were  called,  had  been 
enacted  for  India  by  the  local  government,  that  many 
British  statutes  were  not  intended  to  apply  and  proba- 
bly did  not  apply  to  India  (though  whether  they  did  or 
not  was  sometimes  doubtful),  and  that  a  certain  number 
of  statutes  had  been  enacted  by  Parliament  expressly 
for  India,  Thus  though  the  law  under  which  the 


ROMAN  AND  ENGLISH  LAW  103 

English  lived  had  not  been  perceptibly  affected  by 
Indian  customs,  it  was  very  confused  and  troublesome 
to  work.  That  the  learning  of  the  judges  sent  from 
home  to  sit  in  the  Indian  Courts  was  seldom  equal  to 
that  of  the  judges  in  England  was  not  necessarily  a  dis- 
advantage, for  in  traversing  the  jungle  of  Indian  law 
the  burden  of  English  case  lore  would  have  too  much 
impeded  the  march  of  justice. 

The  first  period  of  English  rule,  the  period  of  rapid 
territorial  extension  and  of  improvised  government,  may 
be  said  to  have  ended  with  the  third  Maratha  war  of 
1817-8.  The  rule  of  Lord  Amherst  and  Lord  William 
Bentinck  (1823-35)  was  a  comparatively  tranquil  period, 
when  internal  reforms  had  their  chance,  as  they  had  in 
the  Roman  Empire  under  Hadrian  and  Antoninus  Pius. 
This  was  also  the  period  when  a  spirit  of  legal  reform 
was  on  foot  in  England.  It  was  the  time  when  the 
ideas  of  Bentham  had  begun  to  bear  fruit,  and  when 
the  work  begun  by  Romilly  was  being  carried  on  by 
Brougham  and  others.  Both  the  law  applied  to  English- 
men, and  such  parts  of  native  law  as  had  been  cut 
across,  filled  up,  and  half  re-shaped  by  English  legal 
notions  and  rules,  called  loudly  for  simplification  and 
reconstruction. 

The  era  of  reconstruction  opened  with  the  enactment, 
in  the  India  Charter  Act  of  1833,  of  a  clause  declaring 
that  a  general  judicial  system  and  a  general  body  of 
law  ought  to  be  established  in  India  applicable  to  all 
classes,  Europeans  as  well  as  natives,  and  that  all  laws 
and  customs  having  legal  force  ought  to  be  ascertained, 
consolidated,  and  amended.  The  Act  then  w.ent  on  to 
provide  for  the  appointment  of  a  body  of  experts  to 
be  called  the  Indian  Law  Commission,  which  was  to 
inquire  into  and  report  upon  the  Courts,  the  procedure 
and  the  law  then  existing  in  India.  Of  this  commis- 
sion Macaulay,  appointed  in  1833  legal  member  of  the 
Governor-General's  Council,  was  the  moving  spirit :  and 
with  it  the  work  of  codification  began.  It  prepared 


104  ROMAN  AND  ENGLISH  LAW 

a  Penal  Code,  which  however  was  not  passed  into  law 
until  1860,  for  its  activity  declined  after  Macaulay's 
return  to  England  and  strong  opposition  was  offered 
to  his  draft  by  many  of  the  Indian  judges.  A  second 
Commission  was  appointed  under  an  Act  of  1853,  and 
sat  in  England.  It  secured  the  enactment  of  the  Penal 
Code,  and  of  Codes  of  Civil  and  of  Criminal  Procedure. 
A  third  Commission  was  created  in  1861,  and  drafted 
other  measures.  The  Government  of  India  demurred 
to  some  of  the  proposed  changes  and  evidently  thought 
that  legislation  was  being  pressed  on  rather  too  fast. 
The  Commission,  displeased  at  this  resistance,  resigned 
in  1870;  and  since  then  the  work  of  preparing  as  well 
as  of  carrying  through  codifying  Acts  has  mostly  been 
done  in  India.  The  net  result  of  the  sixty-six  years 
that  have  passed  since  Macaulay  set  to  work  in  1834 
is  that  Acts  codifying  and  amending  the  law,  and  de- 
claring it  applicable  to  both  Europeans  and  natives, 
have  been  passed  on  the  topics  following : — 

Crimes  (1860). 

Criminal  Procedure  (1861,  1882,  and  1898). 

Civil  Procedure  (1859  and  1882). 

Evidence  (1872). 

Limitation  of  Actions  (1877). 

Specific  Relief  (1877). 

Probate  and  Administration  (1881). 

Contracts  (1872)  (but  only  the  general  rules  of  con- 
tract with  a  few  rules  on  particular  parts  of  the  subject). 

Negotiable  Instruments  (1881)  (but  subject  to  native 
customs). 

Besides  these,  codifying  statutes  have  been  passed 
which  do  not  apply  (at  present)  to  all  India,  but  only  to 
parts  of  it,  or  to  specified  classes  of  the  population, 
on  the  topics  following : — 

Trusts  (1882). 

Transfer  of  Property  (1882). 

Succession  (1865). 

Easements  (1882). 


KOMAX   AM)   EXGLISH  LAW  105 

Guardians  and  Wards  (1890). 

These  statutes  cover  a  large  part  of  the  whole  field 
of  law,  so  that  the  only  important  departments  not  yet 
dealt  with  are  those  of  Torts  or  Civil  Wrongs  (on  which 
a  measure  not  yet  enacted  was  prepared  some  years 
ago) ;  certain  branches  of  contract  law,  which  it  is  not 
urgent  to  systematize  because  they  give  rise  to  lawsuits 
only  in  the  large  cities,  where  the  Courts  are  quite  able 
to  dispose  of  them  in  a  satisfactory  way;  Family  Law, 
which  it  would  be  unsafe  to  meddle  with,  because  the 
domestic  customs  of  Hindus,  Musulmans,  and  Euro- 
peans are  entirely  different ;  and  Inheritance,  the  greater 
part  of  which  is,  for  the  same  reason,  better  left  to 
native  custom.  Some  points  have,  however,  been 
covered  by  the  Succession  Act  already  mentioned. 
Thus  the  Government  of  India  appear  to  think  that  they 
have  for  the  present  gone  as  far  as  they  prudently  can 
in  the  way  of  enacting  uniform  general  laws  for  all 
classes  of  persons.  Further  action  might  displease 
either  the  Hindus  or  the  Musulmans,  possibly  both : 
and  though  there  would  be  advantages  in  bringing  the 
law  of  both  these  sections  of  the  population  into  a  more 
clear  and  harmonious  shape,  it  would  in  any  case  be 
impossible  to  frame  rules  which  would  suit  both  of 
them,  and  would  also  suit  the  Europeans.  Here  Religion 
steps  in,  a  force  more  formidable  in  rousing  opposition 
or  disaffection  than  any  which  the  Romans  had  to  fear. 

In  such  parts  of  the  law  as  are  not  covered  by  these 
enumerated  Acts,  Englishmen,  Hindus  and  Musulmans 
continue  to  live  under  their  respective  laws.  So  do 
Parsis,  Sikhs,  Buddhists  (most  numerous  in  Burma), 
and  Jains,  save  that  where  there  is  really  no  native  law 
or  custom  that  can  be  shown  to  exist,  the  judge  will 
naturally  apply  the  principles  of  English  law,  handling 
them,  if  he  knows  how,  in  an  untechnical  way.  Thus 
beside  the  new  stream  of  united  law  which  has  its  source 
in  the  codifying  Acts,  the  various  older  streams  of  law, 
each  representing  a  religion,  flow  peacefully  on. 


106  ROMAN  AND  ENGLISH  LAW 

The  question  which  follows — What  has  been  the  ac- 
tion on  the  other  of  each  of  these  elements?  resolves 
itself  into  three  questions  : — 

How  far  has  English  Law  affected  the  Native  Law 
which  remains  in  force  ? 

How  far  has  Native  Law  affected  the  English  Law 
which  is  in  force  ? 

How  have  the  codifying  Acts  been  framed — i.e.  are 
they  a  compromise  between  the  English  and  the  native 
element,  or  has  either  predominated  and  given  its  colour 
to  the  whole  mass  ? 

The  answer  to  the  first  question  is  that  English 
influence  has  told  but  slightly  upon  those  branches  of 
native  law  which  had  been  tolerably  complete  before 
the  British  conquest,  and  which  are  so  interwoven  with 
religion  that  one  may  almost  call  them  parts  of  religion. 
The  Hindu  and  Musulman  customs  which  regulate  the 
family  relations  and  rights  of  succession  have  been  pre- 
cisely defined,  especially  those  of  the  Hindus,  which  were 
more  fluid  than  the  Muslim  customs,  and  were  much 
less  uniform  over  the  whole  country.  Trusts  have  been 
formally  legalized,  and  their  obligation  rendered  stronger. 
Adoption  has  been  regularized  and  stiffened,  for  its 
effects  had  been  uncertain  in  their  legal  operation. 
Where  several  doctrines  contended,  one  doctrine  has 
been  affirmed  by  the  English  Courts,  especially  by  the 
Privy  Council  as  ultimate  Court  of  Appeal,  and  the 
others  set  aside.  Moreover  the  Hindu  law  of  Wills 
has  been  in  some  points  supplemented  by  English 
legislation,  and  certain  customs  repugnant  to  European 
ideas,  such  as  the  self-immolation  of  the  widow  on  the 
husband's  funeral  pyre,  have  been  abolished.  And  in 
those  parts  of  law  which,  though  regulated  by  local 
custom,  were  not  religious,  some  improvements  have 
been  effected.  The  rights  of  the  agricultural  tenant  have 
been  placed  on  a  more  secure  basis.  Forest-rights 
have  been  ascertained  and  defined,  partly  no  doubt  for 
the  sake  of  the  pecuniary  interests  which  the  Govern- 


/.'O.J/.IA    .l.\/>    i:\dlJSH    L.\\\  107 

ment  claims  in  them,  and  which  the  peasantry  do  not 
always  admit.  But  no  attempt  has  been  made  to  Anglify 
these  branches  of  law  as  a  whole. 

On  the  other  hand,  the  law  applicable  to  Europeans 
only  has  been  scarcely  (if  at  all)  affected  by  native 
law.  It  remains  exactly  what  it  is  in  England,  except 
in  so  far  as  the  circumstances  of  India  have  called  for 
special  statutes. 

The  third  question  is  as  to  the  contents  of  those 
parts  of  the  law  which  are  common  to  Europeans  and 
Natives,  that  is  to  say,  the  parts  dealt  by  the  codifying 
Acts  already  enumerated.  Here  English  law  has  deci- 
sively prevailed.  It  has  prevailed  not  only  because 
it  would  be  impossible  to  subject  Europeans  to  rules 
emanating  from  a  different  and  a  lower  civilization,  but 
also  because  native  custom  did  not  supply  the  requisite 
materials.  Englishmen  had  nothing  to  learn  from  na- 
tives as  respects  procedure  or  evidence.  The  native 
mercantile  customs  did  not  constitute  a  system  even  of 
the  general  principles  of  contract,  much  less  had  those 
principles  been  worked  out  in  their  details.  Accordingly 
the  Contract  Code  is  substantially  English,  and  where 
it  differs  from  the  result  of  English  cases,  the  differences 
are  due,  not  to  the  influence  of  native  ideas  or  native 
usage,  but  to  the  views  of  those  who  prepared  the 
Code,  and  who,  thinking  the  English  case-law  sus- 
ceptible of  improvement,  diverged  from  it  here  and 
there  just  as  they  might  have  diverged  had  they  been 
preparing  a  Code  to  be  enacted  for  England.  There 
are,  however,  some  points  in  which  the  Penal  Code 
shows  itself  to  be  a  system  intended  for  India.  The 
right  of  self-defence  is  expressed  in  wider  terms  than 
would  be  used  in  England,  for  Macaulay  conceived  that 
the  slackness  of  the  native  in  protecting  himself  by  force 
made  it  desirable  to  depart  a  little  in  this  respect  from 
the  English  rules.  Offences  such  as  dacoity  (brigandage 
by  robber  bands),  attempts  to  bribe  judges  or  witnesses, 
the  use  of  torture  by  policemen,  kidnapping,  the  offering 


108  ROMAN  AND  ENGLISH  LAW 

of  insult  or  injury  to  sacred  places,  have  been  dealt  with 
more  fully  and  specifically  than  would  be  necessary  in 
a  Criminal  Code  for  England.  Adultery  has,  conform- 
ably to  the  ideas  of  the  East,  been  made  a  subject  for 
criminal  proceedings.  Nevertheless  these,  and  other 
similar,  deviations  from  English  rules  which  may  be 
found  in  the  Codes  enacted  for  Europeans  and  natives 
alike,  do  not  affect  the  general  proposition  that  the  codes 
are  substantially  English.  The  conquerors  have  given 
their  law  to  the  conquered.  When  the  conquered  had 
a  law  of  their  own  which  this  legislation  has  effaced,  the 
law  of  the  conquerors  was  better.  Where  they  had  one 
too  imperfect  to  suffice  for  a  growing  civilization,  the 
law  of  the  conquerors  was  inevitable. 

VII.    THE  WORKING  OF  THE  INDIAN  CODES. 

Another  question  needs  to  be  answered.  It  has  a 
twofold  interest,  because  the  answer  not  only  affects 
the  judgement  to  be  passed  on  the  course  which  the 
English  Government  in  India  has  followed,  but  also 
conveys  either  warning  or  encouragement  to  England 
herself.  This  question  is — How  have  these  Indian 
Codes  worked  in  practice  ?  Have  they  improved  the 
administration  of  justice  ?  Have  they  given  satisfaction 
to  the  people  ?  Have  they  made  it  easier  to  know  the 
law,  to  apply  the  law,  to  amend  the  law  where  it  proves 
faulty  ? 

When  I  travelled  in  India  in  1888-9  I  obtained 
opinions  on  these  points  from  many  persons  competent 
to  speak.  There  was  a  good  deal  of  difference  of  view, 
but  the  general  result  seemed  to  be  as  follows.  I  take 
the  four  most  important  codifying  Acts,  as  to  which 
it  was  most  easy  to  obtain  profitable  criticisms. 

The  two  Procedure  Codes,  Civil  and  Criminal,  were 
very  generally  approved.  They  were  not  originally 
creative  work,  but  were  produced  by  consolidating  and 
simplifying  a  mass  of  existing  statutes  and  regulations, 


ROMAN  AND   ENGLISH  LAW  109 

which  had  become  unwieldy  and  confused.  Order 
was  evoked  out  of  chaos,  a  result  which,  though  bene- 
ficial everywhere,  was  especially  useful  in  the  minor 
Courts,  whose  judges  had  less  learning  and  experience 
than  those  of  the  five  High  Courts  at  Calcutta,  Madras, 
Bombay,  Allahabad  and  Lahore. 

The  Penal  Code  was  universally  approved;  and  it 
deserves  the  praise  bestowed  on  it,  for  it  is  one  of  the 
noblest  monuments  of  Macaulay's  genius.  To  appre- 
ciate its  merits,  one  must  remember  how  much,  when 
prepared  in  1834,  it  was  above  the  level  of  the  English 
criminal  law  of  that  time.  The  subject  is  eminently 
fit  to  be  stated  in  a  series  of  positive  propositions,  and 
so  far  as  India  was  concerned,  it  had  rested  mainly 
upon  statutes  and  not  upon  common  law.  It  has  been 
dealt  with  in  a  scientific,  but  also  a  practical  common- 
sense  way:  and  the  result  is  a  body  of  rules  which 
are  comprehensible  and  concise.  To  have  these  on 
their  desks  has  been  an  immense  advantage  for  magis- 
trates in  the  country  districts,  many  of  whom  have  had 
but  a  scanty  legal  training.  It  has  also  been  claimed 
for  this  Code  that  under  it  crime  has  enormously 
diminished:  but  how  much  of  the  diminution  is  due 
to  the  application  of  a  clear  and  just  system  of  rules, 
how  much  to  the  more  efficient  police  administra- 
tion, is  a  question  on  which  I  cannot  venture  to 
pronounce  J. 

No  similar  commendation  was  bestowed  on  the  Evi- 
dence Code.  Much  of  it  was  condemned  as  being 
too  metaphysical,  yet  deficient  in  subtlety.  Much  was 
deemed  superfluous,  and  because  superfluous,  possibly 
perplexing.  Yet  even  those  who  criticized  its  drafting 
admitted  that  it  might  possibly  be  serviceable  to  un- 
trained magistrates  and  practitioners,  and  I  have  myself 
heard  some  of  these  untrained  men  declare  that  they 


1  The  merits  of  this  Code  are  discussed  in  an  interesting  and  suggestive  man- 
ner by  Mr.  H.  Speyer  in  an  article  entitled  Le  Droit  Ptnal  Anglo-indien,  which 
appeared  in  the  Revue  de  r  University  de  Bruxelles  in  April,  1900. 


110  ROMAN  AND  ENGLISH  LAW 

did  find  it  helpful.    They  are  a  class  relatively  larger  in 
India  than  in  England. 

It  was  with  regard  to  the  merits  of  the  Contract  Code 
that  the  widest  difference  of  opinion  existed.  Any  one 
who  reads  it  can  see  that  its  workmanship  is  defective. 
It  is  neither  exact  nor  subtle,  and  its  language  is  often 
far  from  lucid.  Every  one  agreed  that  Sir  J.  F.  Stephen 
(afterwards  Mr.  Justice  Stephen),  who  put  it  into  the 
shape  in  which  it  was  passed  during  his  term  of  office 
as  Legal  Member  of  Council,  and  was  also  the  author  of 
the  Evidence  Act,  was  a  man  of  great  industry,  much 
intellectual  force,  and  warm  zeal  for  codification.  But 
his  capacity  for  the  work  of  drafting  was  deemed  not 
equal  to  his  fondness  for  it.  He  did  not  shine  either  in 
fineness  of  discrimination  or  in  delicacy  of  expression. 
Indian  critics,  besides  noting  these  facts;  went  on  to 
observe  that  in  country  places  four-fifths  of  the  pro- 
visions of  the  Contract  Act  were  superfluous,  while 
those  which  were  operative  sometimes  unduly  fettered 
the  discretion  of  the  magistrate  or  judge,  entangling  him 
in  technicalities,  and  preventing  him  from  meting  out 
that  substantial  justice  which  is  what  the  rural  suitor 
needs.  The  judge  cannot  disregard  the  Act;  because 
if  the  case  is  appealed,  the  Court  above,  which  has 
only  the  notes  of  the  evidence  before  it,  and  does  not 
hear  the  witnesses,  is  bound  to  enforce  the  provisions  of 
the  law.  In  a  country  like  India,  law  ought  not  to  be  too 
rigid:  nor  ought  rights  to  be  stiffened  up  so  strictly  as 
they  are  by  this  Contract  Act.  Creditors  had  already, 
through  the  iron  regularity  with  which  the  British 
Courts  enforce  judgements  by  execution,  obtained  far 
more  power  over  debtors  than  they  possessed  in  the 
old  days,  and  more  than  the  benevolence  of  the  English 
administrator  approves.  The  Contract  Act  increases  this 
power  still  further.  This  particular  criticism  does  not 
reflect  upon  the  technical  merits  of  the  Act  in  itself. 
But  it  does  suggest  reasons  which  would  not  occur  to 
a  European  mind,  why  it  may  be  inexpedient  by  making 


ROMAN  AND  ENGLISH  LAW  111 

the  law  too  precise  to  narrow  the  path  in  which  the 
judge  has  to  walk.  A  stringent  administration  of  the 
letter  of  the  law  is  in  semi-civilized  communities  no 
unmixed  blessing. 

So  much  for  the  rural  districts.  In  the  Presidency 
cities,  on  the  other  hand,  the  Contract  Code  is  by  most 
experts  pronounced  to  be  unnecessary.  The  judges 
and  the  bar  are  already  familiar  with  the  points  which 
it  covers,  and  find  themselves — so  at  least  many  of  them 
say — rather  embarrassed  than  aided  by  it.  They  think 
it  cramps  their  freedom  of  handling  a  point  in  argument. 
They  prefer  the  elasticity  of  the  common  law.  And  in 
point  of  fact,  they  seem  to  make  no  great  use  of  the  Act, 
but  to  go  on  just  as  their  predecessors  did  before  it  was 
passed. 

These  criticisms  may  need  to  be  discounted  a  little, 
in  view  of  the  profound  conservatism  of  the  legal  pro- 
fession, and  of  the  dislike  of  men  trained  at  the  Temple 
or  Lincoln's  Inn  to  have  anything  laid  down  or  applied 
on  the  Hooghly  which  is  not  being  done  at  the  same 
moment  on  the  Thames.  And  a  counterpoise  to  them 
may  be  found  in  the  educational  value  which  is  attri- 
buted to  the  Code  by  magistrates  and  lawyers  who  have 
not  acquired  a  mastery  of  contract  law  through  systema- 
tic instruction  or  through  experience  at  home.  To  them 
the  Contract  Act  is  a  manual  comparatively  short  and 
simple,  and  also  authoritative;  and  they  find  it  useful 
in  enabling  them  to  learn  their  business.  On  the  whole, 
therefore,  though  the  Code  does  not  deserve  the  credit 
which  has  sometimes  been  claimed  for  it,  one  may  hesi- 
tate to  pronounce  its  enactment  a  misfortune.  It  at  any 
rate  provides  a  basis  on  which  a  really  good  Code  of 
contractual  law  may  some  day  be  erected. 

Taking  the  work  of  Indian  codification  as  a  whole,  it 
has  certainly  benefited  the  country.  The  Penal  Code 
and  the  two  Codes  of  Procedure  represent  an  unmixed 
gain.  The  same  may  be  said  of  the  consolidation  of  the 
statute  law,  for  which  so  much  was  done  by  the  energy 


112  ROMAN  AND  ENGLISH  LAW 

and  skill  of  Mr.  Whitley  Stokes.  And  the  other  codify- 
ing acts  have  on  the  whole  tended  both  to  improve  the 
substance  of  the  law  and  to  make  it  more  accessible. 
Their  operation  has,  however,  been  less  complete  than 
most  people  in  Europe  realize,  for  while  many  of  them 
are  confined  to  certain  districts,  others  are  largely 
modified  by  the  local  customs  which  they  have  (as  ex- 
pressed in  their  saving  clauses)  very  properly  respected. 
If  we  knew  more  about  the  provinces  of  the  Roman 
Empire  we  might  find  that  much  more  of  local  custom 
subsisted  side  by  side  with  the  apparently  universal  and 
uniform  imperial  law  than  we  should  gather  from  reading 
the  compilations  of  Justinian. 

It  has  already  been  observed  that  Indian  influences 
have  scarcely  at  all  affected  English  law  as  it  continues 
to  be  administered  to  Englishmen  in  India.  Still  less 
have  they  affected  the  law  of  England  at  home.  It  seems 
to  have  been  fancied  thirty  or  forty  years  ago,  when  law 
reform  in  general  and  codification  in  particular  occupied 
the  public  mind  more  than  they  do  now,  that  the  enact- 
ment of  codes  of  law  for  India,  and  the  success  which 
was  sure  to  attend  them  there,  must  react  upon  England 
and  strengthen  the  demand  for  the  reduction  of  her  law 
into  a  concise  and  systematic  form.  No  such  result  has 
followed.  The  desire  for  codification  in  England  has 
not  been  perceptibly  strengthened  by  the  experience  of 
India.  Nor  can  it  indeed  be  said  that  the  experience 
of  India  has  taught  jurists  or  statesmen  much  which 
they  did  not  know  before.  That  a  good  code  is  a  very 
good  thing,  and  that  a  bad  code  is,  in  a  country  which 
possesses  competent  judges,  worse  than  no  code  at 
all — these  are  propositions  which  needed  no  Indian  ex- 
perience to  verify  them.  The  imperfect  success  of  the 
Evidence  and  Contract  Acts  has  done  little  more  than 
add  another  illustration  to  those  furnished  by  the  Civil 
Code  of  California  and  the  Code  of  Procedure  in  New 
York  of  the  difficulty  which  attends  these  undertakings. 
Long  before  Indian  codification  was  talked  of,  Savigny 


ROMAN  AND   ENGLISH   LAW  113 

had  shown  how  hard  it  is  to  express  the  law  in  a  set 
of  definite  propositions  without  reducing  its  elasticity 
and  impeding  its  further  development.  His  arguments 
scarcely  touch  penal  law,  still  less  the  law  of  procedure, 
for  these  are  not  topics  in  which  much  development 
need  be  looked  for.  But  the  future  career  of  the 
Contract  Act  and  of  the  projected  Code  of  Torts,  when 
enacted,  may  supply  some  useful  data  for  testing  the 
soundness  of  his  doctrine. 

One  reason  why  these  Indian  experiments  have  so 
little  affected  English  opinion  may  be  found  in  the  fact 
that  few  Englishmen  have  either  known  or  cared  any- 
thing about  them.  The  British  public  has  not  realized 
how  small  is  the  number  of  persons  by  whom  questions 
of  legal  policy  in  India  have  during  the  last  seventy 
years  been  determined.  Two  or  three  officials  in  Down- 
ing Street  and  as  many  in  Calcutta  have  practically 
controlled  the  course  of  events,  with  little  interposition 
from  outside.  Even  when  Commissions  have  been 
sitting,  the  total  number  of  those  whose  hand  is  felt  has 
never  exceeded  a  dozen.  It  was  doubtless  much  the 
same  in  the  Roman  Empire.  Indeed  the  world  seldom 
realizes  by  how  few  persons  it  is  governed.  There  is 
a  sense  in  which  power  may  be  said  to  rest  with  the 
whole  community,  and  there  is  also  a  sense  in  which 
it  may  be  said,  in  some  governments,  to  rest  with  a 
single  autocrat.  But  in  reality  it  almost  always  rests 
with  an  extremely  small  number  of  persons,  whose 
knowledge  and  will  prevail  over  or  among  the  titular 
possessors  of  authority. 

Before  we  attempt  to  forecast  the  future  of  English 
law  in  India,  let  us  cast  a  glance  back  at  the  general 
course  of  its  history  as  compared  with  that  of  the  law 
of  Rome  in  the  ancient  world. 
8 


114  ROMAN  AND  ENGLISH  LAW 


VIII.    COMPARISON  OF  THE  ROMAN  LAW  WITH  ENGLISH 
LAW  IN  INDIA. 

Rome  grew  till  her  law  became  first  that  of  Italy, 
then  that  of  civilized  mankind.  The  City  became  the 
World,  Urbs  became  Orbis,  to  adopt  the  word-play 
which  was  once  so  familiar.  Her  law  was  extended 
over  her  Empire  by  three  methods : — 

Citizenship  was  gradually  extended  over  the  provinces 
till  at  last  all  subjects  had  become  citizens. 

Many  of  the  principles  and  rules  of  the  law  of  the 
City  were  established  and  diffused  in  the  provinces  by 
the  action  of  Roman  Magistrates  and  Courts,  and  es- 
pecially by  the  Provincial  Edict. 

The  ancient  law  of  the  City  was  itself  all  the  while 
amended,  purged  of  its  technicalities,  and  simplified  in 
form,  till  it  became  fit  to  be  the  law  of  the  World. 

Thus,  when  the  law  of  the  City  was  formally  extended 
to  the  whole  Empire  by  the  grant  of  citizenship  to  all 
subjects,  there  was  not  so  much  an  imposition  of  the 
conqueror's  law  upon  the  conquered  as  the  completion 
of  a  process  of  fusion  which  had  been  going  on  for 
fully  four  centuries.  The  fusion  was  therefore  natural ; 
and  because  it  was  natural  it  was  complete  and  final. 
The  separation  of  the  one  great  current  of  Roman  law 
into  various  channels,  which  began  in  the  fifth  century 
A.D.  and  has  continued  ever  since,  has  been  due  to 
purely  historical  causes,  and  of  late  years  (as  we  shall 
see  presently)  the  streams  that  flow  in  these  channels 
have  tended  to  come  nearer  to  one  another. 

During  the  period  of  more  than  four  centuries  (B.C. 
241  to  A.D.  211-7),  when  these  three  methods  of  develop- 
ment and  assimilation  were  in  progress,  the  original 
law  of  the  City  was  being  remoulded  and  amended  in 
the  midst  of  and  under  the  influence  of  a  non-Roman 
population  of  aliens  (peregrini)  at  Rome  and  in  the 
provinces,  and  that  semi-Roman  law  which  was  ad- 


If  OMAN  AND  ENGLISH  LA\\  115 

ministered  in  the  provinces  was  being  created  by 
magistrates  and  judges  who  lived  in  the  provinces  and 
who  were,  after  the  time  of  Tiberius,  mostly  them- 
selves of  provincial  origin.  Thus  the  intelligence,  re- 
flection, and  experience  of  the  whole  community  played 
upon  and  contributed  to  the  development  of  the  law. 
Judges,  advocates,  juridical  writers  and  teachers  as  well 
as  legislators,  joined  in  the  work.  The  completed  law 
was  the  outcome  of  a  truly  national  effort.  Indeed  it  was 
largely  through  making  a  law  which  should  be  fit  for  both 
Italians  and  provincials  that  the  Romans  of  the  Empire 
became  almost  a  nation. 

In  India  the  march  of  events  has  been  different, 
because  the  conditions  were  different.  India  is  ten 
thousand  miles  from  England.  The  English  residents 
are  a  mere  handful. 

The  Indian  races  are  in  a  different  stage  of  civiliza- 
tion from  the  English.  They  are  separated  by  religion ; 
they  are  separated  by  colour. 

There  has  therefore  been  no  fusion  of  English  and 
native  law.  Neither  has  there  been  any  movement  of 
the  law  of  England  to  adapt  itself  to  become  the  law  of 
her  Indian  subjects.  English  law  has  not,  like  Roman, 
come  halfway  to  meet  the  provinces.  It  is  true  that 
no  such  approximation  was  needed,  because  English 
law  had  already  reached,  a  century  ago,  a  point  of 
development  more  advanced  than  Roman  law  had 
reached  when  the  conquest  of  the  provinces  began, 
and  the  process  of  divesting  English  law  of  its  archaic 
technicalities  went  on  so  rapidly  during  the  nineteenth 
century  under  purely  home  influences,  that  neither  the 
needs  of  India  nor  the  influences  of  India  came  into 
the  matter  at  all. 

The  Romans  had  less  resistance  to  meet  with  from 
religious  diversities  than  the  English  have  had,  for  the 
laws  of  their  subjects  had  not  so  wrapped  their  roots 
round  religious  belief  or  usage  as  has  been  the  case  in 
India.  But  they  had  more  varieties  of  provincial  custom 


116  ROMAN  AND  ENGLISH  LAW 

to  consider,  and  they  had,  especially  in  the  laws  of  the 
Hellenized  provinces,  systems  more  civilized  and  ad- 
vanced first  to  recognize  and  ultimately  to  supersede 
than  any  body  of  law  which  the  English  found. 

There  is  no  class  in  India  fully  corresponding  to  the 
Roman  citizens  domiciled  in  the  provinces  during  the 
first  two  centuries  of  the  Roman  Empire.  The  Euro- 
pean British  subjects,  including  the  Eurasians,  are  com- 
paratively few,  and  they  are  to  a  considerable  extent 
a  transitory  element,  whose  true  home  is  England.  Only 
to  a  very  small  extent  do  they  enjoy  personal  immunities 
and  privileges  such  as  those  that  made  Roman  citizen- 
ship so  highly  prized,  for  the  English,  more  liberal  than 
the  Romans,  began  by  extending  to  all  natives  of  India, 
as  and  when  they  became  subjects  of  the  British  Crown, 
the  ordinary  rights  of  British  subjects  enjoyed  under 
such  statutes  as  Magna  Charta  and  the  Bill  of  Rights. 
The  natives  of  India  have  entered  into  the  labours  of  the 
barons  at  Runnymede  and  of  the  Whigs  of  1688. 

What  has  happened  has  been  that  the  English  have 
given  to  India  such  parts  of  their  own  law  (somewhat 
simplified  in  form)  as  India  seemed  fitted  to  receive. 
These  parts  have  been  applied  to  Europeans  as  well  as 
to  natives,  but  they  were  virtually  applicable  to  Euro- 
peans before  codification  began.  The  English  rulers 
have  filled  up  those  departments  in  which  there  was 
no  native  law  worthy  of  the  name,  sometimes,  however, 
respecting  local  native  customs.  Here  one  finds  an  in- 
teresting parallel  to  the  experience  of  the  Romans. 
They,  like  the  English,  found  criminal  law  and  the 
law  of  procedure  to  be  the  departments  which  could 
be  most  easily  and  promptly  dealt  with.  They,  like 
the  English,  were  obliged  to  acquiesce  in  the  retention 
by  a  part  of  the  population  of  some  ancient  customs 
regarding  the  Family  and  the  Succession  to  Property. 
But  this  acquiescence  was  after  all  partial  and  local; 
whereas  the  English  have  neither  applied  to  India  the 
more  technical  parts  of  their  own  law,  such  as  that 


.v  .L\/>  I:\<;LIXH  LAW  in 

relating  to  land,  nor  attempted  to  supersede  those  parts 
of  native  law  which  are  influenced  by  religion,  such  as 
the  parts  which  include  family  relations  and  inheritance. 
Thus  there  has  been  no  general  fusion  comparable  to 
that  which  the  beginning  of  the  third  century  A.  D.  saw 
in  the  Roman  Empire. 

As  respects  codification,  the  English  have  in  one 
sense  done  more  than  the  Romans,  in  another  sense 
less.  They  have  reduced  such  topics  as  penal  law  and 
procedure,  evidence  and  trusts,  to  a  compact  and  well- 
ordered  shape,  which  is  more  than  Justinian  did  for  any 
part  of  the  Roman  law.  But  they  have  not  brought  the 
whole  law  together  into  one  Corpus  luris,  and  they  have 
left  large  parts  of  it  in  triplicate,  so  to  speak,  that  is  to 
say,  consisting  of  rules  which  are  entirely  different  for 
Hindus,  for  Musulmans,  and  for  Europeans. 

Moreover,  as  it  is  the  law  of  the  conquerors  which 
has  in  India  been  given  to  the  conquered  practically 
unaffected  by  native  law,  so  also  the  law  of  England 
has  not  been  altered  by  the  process.  It  has  not  been 
substantially  altered  in  India.  The  uncodified  English 
law  there  is  the  same  (local  statutes  excepted)  as  the 
law  of  England  at  home.  Still  less  has  it  been  altered 
in  England  itself.  Had  Rome  not  acquired  her  Empire, 
her  law  would  never  have  grown  to  be  what  it  was  in 
Justinian's  time.  Had  Englishmen  never  set  foot  in 
India,  their  law  would  have  been,  so  far  as  we  can  tell, 
exactly  what  it  is  to-day. 

Neither  have  those  natives  of  India  who  correspond 
to  the  provincial  subjects  of  Rome  borne  any  recog- 
nizable share  in  the  work  of  Indian  legal  development. 
Some  of  them  have,  as  text-writers  or  as  judges, 
rendered  good  service  in  elucidating  the  ancient  Hindu 
customs.  But  the  work  of  throwing  English  law  into 
the  codified  form  in  which  it  is  now  applied  in  India  to 
Europeans  and  natives  alike  has  been  done  entirely  by 
Englishmen.  In  this  respect  also  the  more  advanced 
civilization  has  shown  its  dominant  creative  force. 


118  ROMAN  AND  ENGLISH  LAW 

IX.    THE  FUTURE  OF  ENGLISH  LAW  IN  INDIA. 

Here,  however,  it  is  fit  to  remember  that  we  are  not, 
as  in  the  case  of  the  Romans,  studying  a  process  which 
has  been  completed.  For  them  it  was  completed  before 
the  fifth  century  saw  the  dissolution  of  the  western  half 
of  the  Empire.  For  India  it  is  still  in  progress.  Little 
more  than  a  century  has  elapsed  since  English  rule  was 
firmly  established;  only  half  a  century  since  the  Punjab 
and  (shortly  afterwards)  Oudh  were  annexed.  Although 
the  Indian  Government  has  prosecuted  the  work  of 
codification  much  less  actively  during  the  last  twenty 
years  than  in  the  twenty  years  preceding,  and  seems  to 
conceive  that  as  much  has  now  been  done  as  can 
safely  be  done  at  present,  still  in  the  long  future  that 
seems  to  lie  before  British  rule  in  India  the  equalization 
and  development  of  law  may  go  much  further  than 
we  can  foresee  to-day.  The  power  of  Britain  is  at  this 
moment  stable,  and  may  remain  so  if  she  continues 
to  hold  the  sea  and  does  not  provoke  discontent  by 
excessive  taxation. 

Two  courses  which  legal  development  may  follow 
are  conceivable.  One  is  that  all  those  departments  of 
law  whose  contents  are  not  determined  by  conditions 
peculiar  to  India  will  be  covered  by  further  codifying 
acts,  applicable  to  Europeans  and  natives  alike,  and  that 
therewith  the  process  of  equalization  and  assimilation 
will  stop  because  its  natural  limits  will  have  been 
reached.  The  other  is  that  the  process  will  continue 
until  the  law  of  the  stronger  and  more  advanced  race 
has  absorbed  that  of  the  natives  and  become  applicable 
to  the  whole  Empire. 

Which  of  these  two  things  will  happen  depends  upon 
the  future  of  the  native  religions,  and  especially  of 
Hinduism  and  of  Islam,  for  it  is  in  religion  that  the  legal 
customs  of  the  natives  have  their  roots.  Upon  this 
vast  and  dark  problem  it  may  seem  idle  to  speculate; 
nor  can  it  be  wholly  dissevered  from  a  consideration 


ROMAN  AND   ENGLISH   LAW  119 

of  the  possible  future  of  the  religious  beliefs  which 
now  hold  sway  among  Europeans.  Both  Islam  and 
Hinduism  are  professed  by  masses  of  human  beings  so 
huge,  so  tenacious  of  their  traditions,  so  apparently 
inaccessible  to  European  influences,  that  no  consider- 
able declension  of  either  faith  can  be  expected  within 
a  long  period  of  years.  Yet  experience,  so  far  as  it  is 
available,  goes  to  show  that  no  form  of  heathenism, 
not  even  an  ancient  and  in  some  directions  highly  culti- 
vated form  like  Hinduism,  does  ultimately  withstand 
the  solvent  power  of  European  science  and  thought. 
Even  now,  though  Hinduism  is  growing  every  day, 
at  the  expense  of  the  ruder  superstitions  among  the 
hill-folk,  it  is  losing  its  hold  on  the  educated  class, 
and  it  sees  every  day  members  of  its  lower  castes  pass 
over  to  Islam.  So  Islam  also,  deeply  rooted  as  it  may 
seem  to  be,  wanes  in  the  presence  of  Christianity,  and 
though  it  advances  in  Central  Africa,  declines  in  the 
Mediterranean  countries.  It  has  hitherto  declined  not 
by  the  conversion  of  its  members  to  other  faiths,  but  by 
the  diminution  of  the  Muslim  population ;  yet  one  must 
not  assume  that  when  the  Turkish  Sultanate  or  Khalifate 
has  vanished,  it  may  not  lose  much  of  its  present  hold 
upon  the  East.  Possibly  both  Hinduism  and  Islam 
may,  so  potent  are  the  new  forces  of  change  now  at 
work  in  India,  begin  within  a  century  or  two  to  show 
signs  of  approaching  dissolution.  Polygamy  may  by  that 
time  have  disappeared.  Other  peculiar  features  of  the 
law  of  family  and  inheritance  will  tend  to  follow,  though 
some  may  survive  through  the  attachment  to  habit  even 
when  their  original  religious  basis  has  been  forgotten. 

In  the  Arctic  seas,  a  ship  sometimes  lies  for  weeks 
together  firmly  bound  in  a  vast  ice-field.  The  sailor 
who  day  after  day  surveys  from  the  masthead  the  daz- 
zling expanse  sees  on  every  side  nothing  but  a  solid 
surface,  motionless  and  apparently  immoveable.  Yet 
all  the  while  this  ice-field  is  slowly  drifting  to  the 
south,  carrying  with  it  the  embedded  ship.  At  last, 


120  ROMAN  AND  ENGLISH  LAW 

when  a  warmer  region  has  been  reached  and  the  south 
wind  has  begun  to  blow,  that  which  overnight  was  a 
rigid  and  glittering  plain  is  in  the  light  of  dawn  a  tossing 
mass  of  ice-blocks,  each  swiftly  melting  into  the  sea, 
through  which  the  ship  finds  her  homeward  path.  So 
may  it  be  with  these  ancient  religions.  When  their  dis- 
solution comes,  it  may  come  with  unexpected  sudden- 
ness, for  the  causes  which  will  produce  it  will  have  been 
acting  simultaneously  and  silently  over  a  wide  area.  If 
the  English  are  then  still  the  lords  of  India,  there  will 
be  nothing  to  prevent  their  law  from  becoming  (with 
some  local  var  ;ons)  the  law  of  all  India.  Once  estab- 
lished and  fam^dr  to  the  people,  it  will  be  likely  to 
remain,  whatever  political  changes  may  befall,  for  noth- 
ing clings  to  the  soil  more  closely  than  a  body  of  civilized 
law  once  well  planted.  So  the  law  of  England  may 
become  the  permanent  heritage,  not  only  of  the  hundreds 
of  millions  who  will  before  the  time  we  are  imagining  be 
living  beyond  the  Atlantic,  but  of  those  hundreds  of 
millions  who  fill  the  fertile  land  between  the  Straits  of 
Manaar  and  the  long  rampart  of  Himalayan  snows. 

We  embarked  on  this  inquiry  for  the  sake  of  ascer- 
taining what  light  the  experience  of  the  English  in 
India  throws  upon  the  general  question  of  the  relation 
of  the  European  nations  to  those  less  advanced  races 
over  whom  they  are  assuming  dominion,  and  all  of 
whom  will  before  long  own  some  European  master  1. 

These  races  fall  into  two  classes,  those  which  do  and 
those  which  do  not  possess  a  tolerably  complete  system 
of  law.  Turks,  Persians,  Egyptians,  Moors,  and  Siamese 
belong  to  the  former  class;  all  other  non-European  races 
to  the  latter. 

As  to  the  latter  there  is  no  difficulty.  So  soon  as 
Kafirs  or  Mongols  or  Hausas  have  advanced  sufficiently 
to  need  a  regular  set  of  legal  rules,  they  will  (if  their 

1  Among  the  '  less  advanced  races '  one  must  not  now  include  the  Japanese,  but 
one  may  include  the  Turks  and  the  Persians.  The  fate  of  China  still  hangs  in  the 
balance.  It  is  not  to  be  assumed  that  she  will  be  ruled,  though  she  must  come  to 
be  influenced,  and  probably  more  and  more  influenced,  by  Europeans. 


ROMAN  AND  ENGLISH  LAW  121 

European  masters  think  it  worth  while)  become  subject 
to  the  law  of  those  masters,  of  course  more  or  less 
differentiated  according  to  local  customs  or  local  needs. 
It  may  be  assumed  that  French  law  will  prevail  in 
Madagascar,  and  English  law  in  -Uganda,  and  Russian 
law  in  the  valley  of  the  Amur. 

Where,  however,  as  is  the  case  in  the  Musulman  and 
perhaps  also  in  the  Buddhist  countries  belonging  to  the 
former  class,  a  legal  system  which,  though  imperfect, 
especially  on  the  commercial  side,  has  been  carefully 
worked  out  in  some  directions,  holds  the  field  and  rests 
upon  religion,  the  question  is  less  r>ir  "»Ie.  The  experi- 
ence of  the  English  in  India  suggest**  that  European 
law  will  occupy  the  non-religious  parts  of  the  native 
systems,  and  will  tend  by  degrees  to  encroach  upon 
and  permeate  even  the  religious  parts,  though  so  long 
as  Islam  (or  Brahmanism)  maintains  its  sway  the  legal 
customs  and  rules  embedded  in  religion  will  survive. 
No  wise  ruler  would  seek  to  efface  them  so  far  as  they 
are  neither  cruel  nor  immoral.  It  is  only  these  ancient 
religions — Hinduism,  Buddhism,  and  especially  Islam — 
that  can  or  will  resist,  though  perhaps  only  for  a  time, 
and  certainly  only  partially,  the  rising  tide  of  European 
law. 

X.    PRESENT   POSITION   OF   ROMAN   AND   ENGLISH   LAW 
IN  THE  WORLD. 

European  law  means,  as  we  have  seen,  either  Roman 
law  or  English  law,  so  the  last  question  is :  Will  either, 
and  if  so  which,  of  these  great  rival  systems  prevail 
over  the  other  ? 

They  are  not  unequally  matched.  The  Roman  jurists, 
if  we  include  Russian  as  a  sort  of  modified  Roman  law, 
influence  at  present  a  larger  part  of  the  world's  popula- 
tion, but  Bracton  and  Coke  and  Mansfield  might  rejoice 
to  perceive  that  the  doctrines  which  they  expounded 
are  being  diffused  even  more  swiftly,  with  the  swift 


122  ROMAN  AND  ENGLISH  LAW 

diffusion  of  the  English  tongue,  over  the  globe.  It 
is  an  interesting  question,  this  competitive  advance  of 
legal  systems,  and  one  which  would  have  engaged 
the  attention  of  historians  and  geographers,  were  not 
law  a  subject  which  lies  so  much  outside  the  thoughts 
of  the  lay  world  that  few  care  to  study  its  historical 
bearings.  It  furnishes  a  remarkable  instance  of  the 
tendency  of  strong  types  to  supplant  and  extinguish 
weak  ones  in  the  domain  of  social  development.  The 
world  is,  or  will  shortly  be,  practically  divided  between 
two  sets  of  legal  conceptions  of  rules,  and  two  only. 
The  elder  had  its  birth  in  a  small  Italian  city,  and 
though  it  has  undergone  endless  changes  and  now 
appears  in  a  variety  of  forms,  it  retains  its  distinctive 
character,  and  all  these  forms  still  show  an  underlying 
unity.  The  younger  has  sprung  from  the  union  of  the 
rude  customs  of  a  group  of  Low  German  tribes  with 
rules  worked  out  by  the  subtle,  acute  and  eminently 
disputatious  intellect  of  the  Gallicized  Norsemen  who 
came  to  England  in  the  eleventh  century.  It  has  been 
much  affected  by  the  elder  system,  yet  it  has  retained 
its  distinctive  features  and  spirit,  a  spirit  specially  con- 
trasted with  that  of  the  imperial  law  in  everything  that 
pertains  to  the  rights  of  the  individual  and  the  means 
of  asserting  them.  And  it  has  communicated  something 
of  this  spirit  to  the  more  advanced  forms  of  the  Roman 
law  in  constitutional  countries. 

At  this  moment  the  law  whose  foundations  were  laid 
in  the  Roman  Forum  commands  a  wider  area  of  the 
earth's  surface,  and  determines  the  relations  of  a  larger 
mass  of  mankind.  But  that  which  looks  back  to  West- 
minster Hall  sees  its  subjects  increase  more  rapidly, 
through  the  growth  of  the  United  States  and  the  British 
Colonies,  and  has  a  prospect  of  ultimately  overspreading 
India  also.  Neither  is  likely  to  overpower  or  absorb 
the  other.  But  it  is  possible  that  they  may  draw  nearer, 
and  that  out  of  them  there  may  be  developed,  in  the 
course  of  ages,  a  system  of  rules  of  private  law  which 


ROMAN  AND  ENGLISH  LAW  123 

shall  be  practically  identical  as  regards  contracts  and 
property  and  civil  wrongs,  possibly  as  regards  offences 
also.  Already  the  commercial  law  of  all  civilized  coun- 
tries is  in  substance  the  same  everywhere,  that  is  to  say, 
it  guarantees  rights  and  provides  remedies  which  afford 
equivalent  securities  to  men  in  their  dealings  with  one 
another  and  bring  them  to  the  same  goal  by  slightly 
different  paths. 

The  more  any  department  of  law  lies  within  the 
domain  of  economic  interest,  the  more  do  the  rules  that 
belong  to  it  tend  to  become  the  same  in  all  countries, 
for  in  the  domain  of  economic  interest  Reason  and 
Science  have  full  play.  But  the  more  the  element  of 
human  emotion  enters  any  department  of  law,  as  for 
instance  that  which  deals  with  the  relations  of  husband 
and  wife,  or  of  parent  and  child,  or  that  which  defines 
the  freedom  of  the  individual  as  against  the  State,  the 
greater  becomes  the  probability  that  existingdivergences 
between  the  laws  of  different  countries  may  in  that  de- 
partment continue,  or  even  that  new  divergences  may 
appear. 

Still,  on  the  whole,  the  progress  of  the  world  is 
towards  uniformity  in  law,  and  towards  a  more  evident 
uniformity  than  is  discoverable  either  in  the  sphere  of 
religious  beliefs  or  in  that  of  political  institutions. 


Ill 


FLEXIBLE    AND     RIGID     CONSTI- 
TUTIONS ' 

I.    THE  CONSTITUTIONS  OF  ROME  AND  ENGLAND. 

ROME  and  England  are  the  two  States  whose  con- 
stitutions have  had  the  greatest  interest  for  the  world, 
and  have  exerted  the  greatest  influence  upon  it.  Out 
of  the  republic  on  the  Tiber,  a  city  with  a  rural  terri- 
tory round  it  no  bigger  than  Surrey  or  Rhode  Island, 
grew  a  World  Empire,  and  the  framework  of  that 
Empire  retained  till  its  fall  traces  of  the  institutions 
under  which  the  little  republic,  circled  and  threatened 
by  a  crowd  of  hostile  States,  had  risen  to  show  her- 
self the  strongest  of  them  all.  In  England  a  monarchy, 
first  tribal  and  then  feudal,  developed  from  very  small 
beginnings  into  a  second  World  Empire  of  a  wholly 
different  type,  while  at  the  samfe  time  the  ancient  form 
of  government,  through  a  series  of  struggles  and  efforts, 
guided  by  an  only  half-conscious  purpose,  slowly  de- 
veloped itself  into  a  system  monarchical  only  in  name. 
That  system  became  in  the  eighteenth  century  the  start- 
ing-point for  all  modern  political  philosophy  2,  and  in  the 
nineteenth  the  model  for  nearly  all  the  schemes  of  free 

1  This  Essay  was  delivered,  in  the  form  of  two  lectures,  in  1884,  and  the  names 
Flexible  and  Rigid  were  then  suggested  for  the  two  types  of  Constitution  here 
described.  It  has  been  enlarged  and  revised  and  brought  up  to  date,  but  the  sub- 
stance remain*  the  same. 

a  The  interest  which  the  English  Constitution  excited  in  Montesquieu  may  be 
compared  with  that  which  the  Roman  excited  in  Polybius. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  125 

representative  polity  that  have  arisen  in  the  Old  World 
as  well  as  for  many  in  the  newer  countries. 

It  is,  however,  not  merely  the  range  of  their  influence, 
nor  merely  the  fact  that,  as  the  Roman  Constitution 
worked  upon  the  whole  of  the  ancient,  so  the  English 
Constitution  has  worked  upon  the  whole  of  the  modern 
world,  that  makes  these  two  systems  deserve  constant 
study.  Constitutions  are  the  expression  of  national 
character,  as  they  in  their  turn  mould  the  character  of 
those  who  use  them ;  and  the  same  causes  which  made 
both  peoples  great  have  made  their  political  institutions 
also  strong  and  rich,  specially  full  of  instruction  for  all 
nations  in  all  times.  There  were  in  the  fifth  century 
B.  c.  hundreds  of  commonwealths  in  the  Mediterranean 
countries  with  republican  frames  of  government,  many 
of  which  bore  a  general  resemblance  to  that  of  Rome. 
There  were  in  the  fourteenth  century  A.  D.  several  mon- 
archies in  Europe  similar  in  their  constitutional  outlines 
to  that  of  England,  and  with  what  seemed  an  equal  pro- 
mise of  rich  and  free  development.  Of  the  former,  Rome 
alone  survived,  destroying  or  absorbing  all  the  rest. 
Of  the  latter,  that  of  England  is  the  only  one  which  had 
at  the  end  of  the  eighteenth  century  grown  into  a  system 
at  once  broad-based  and  strong,  a  system  which  secured 
both  public  order  and  the  freedom  of  the  individual  citi- 
zen, and  in  which  the  people  were  able  to  make  their 
voice  heard  and  to  influence  the  march  of  national  policy. 
All  the  others  had  either  degenerated  into  despotisms  or 
remained  comparatively  crude  and  undeveloped.  Thus 
when,  after  the  flood  of  Napoleonic  conquest  had  sub- 
sided, the  peoples  of  the  European  continent  began  to 
essay  the  establishment  of  free  constitutions,  they  found 
in  that  of  England  the  model  fittest  to  be  followed,  and 
sought  to  adapt  its  principles  to  their  own  several 
conditions. 

England,  moreover,  has  been  the  parent  of  free 
governments  in  a  further  sense.  Though  she  has  not, 
like  Rome,  stretched  her  system  of  government  till  it 


136  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

embraced  the  world,  she  has  reproduced  it  in  those 
parts  of  her  transoceanic  dominions  where  her  children 
have  been  able  to  form  self-governing  communities. 
Reduced  copies  of  the  British  Constitution  have  been 
created  in  seventeen  self-governing  colonies.  Seven  of 
these  have  in  North  America  been  united  in  a  Federa- 
tion whose  frame  of  government  is  built  on  British 
lines.  Six  others,  in  Australia,  have  been  similarly 
grouped  in  another  Federal  Government  of  a  not  less 
distinctively  British  type.  And  an  independent  Republic, 
far  vaster  in  population  than  all  these  colonies  put  to- 
gether, has,  less  closely,  but  yet  in  the  main  and  essential 
points,  reproduced  the  principles,  although  not  the  form, 
of  the  institutions  of  the  motherland.  It  is,  therefore, 
to  Rome  and  to  England  that  the  eye  of  the  student  of 
political  constitutions  will  most  often  turn.  They  repre- 
sent the  most  remarkable  developments  of  ordered 
political  life  for  the  ancient  and  for  the  modern  world 
respectively.  And  whoever  attempts  to  classify  Consti- 
tutions and  to  note  the  distinctive  features  of  the  princi- 
pal types  they  present,  will  find  that  it  is  from  Rome  and 
from  England  that  illustrations  can  most  frequently  and 
most  profitably  be  drawn1. 

II.    THE  TRADITIONAL  CLASSIFICATION  OF 
CONSTITUTIONS. 

The  old-fashioned  classification  of  Constitutions  which 
has  come  down  to  our  own  times  is  based  on  the 
distinction  of  Written  and  Unwritten  Law,  itself  an  ill- 
expressed  and  rather  confusing  distinction,  because  ins 
non  scriptum  is  intended  to  denote  customs:  and  when 
customs  have  been  recorded  in  writing,  they  can  hardly 
continue  to  be  called  unwritten.  This  classification 
places  in  the  category  of  Written  Constitutions  those 
which  are  expressly  set  forth  in  a  specially  important 

1  As  to  the  countries  or  peoples  in  which  Constitutions  in  the  proper  sense  can 
be  said  to  exist,  see  Note  at  the  end  of  this  Essay. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  127 

document  or  documents,  and  in  the  category  of  Unwrit- 
ten those  which  began,  not  in  formal  agreements,  but  in 
usage,  a  usage  which  lives  in  men's  recollections,  and 
which,  even  when  it  has  been  to  a  large  extent  defined, 
and  secured  against  error,  by  being  committed  to  writ- 
ing, is  recorded  as  embodying  that  which  men  have  ob- 
served, and  are  deemed  likely  to  continue  to  observe, 
not  as  that  to  which  they  have  bound  themselves  formally 
by  a  law. 

These  terms  are,  however,  not  happy  terms,  although 
the  distinction  they  aim  at  expressing  is  a  real  distinction. 
The  line  which  they  attempt  to  draw  between  the  two 
classes  of  Constitutions  is  not  a  clear  or  sharp  line, 
because  in  all  Written  Constitutions  there  is  and  must 
be,  as  we  shall  presently  see,  an  element  of  unwritten 
usage,  while  in  the  so-called  Unwritten  ones  the  tendency 
to  treat  the  written  record  of  custom  or  precedent  as 
practically  binding  is  strong,  and  makes  that  record 
almost  equivalent  to  a  formally  enacted  law,  not  to  add 
that  Unwritten  Constitutions,  though  they  began  in 
custom,  always  include  some  statutes.  Moreover,  these 
names,  while  they  dwell  on  a  superficial  distinction, 
ignore  a  more  essential  one  to  be  presently  mentioned. 
Let  us  therefore  try  to  find  a  better  classification. 

If  we  survey  Constitutions  generally,  in  the  past  as 
well  as  in  the  present,  we  find  them  conforming  to  one 
or  other  of  two  leading  types.  Some  are  natural  growths, 
unsymmetrical  both  in  their  form  and  in  their  contents. 
They  consist  of  a  variety  of  specific  enactments  or  agree- 
ments of  different  dates,  possibly  proceeding  from  dif- 
ferent sources,  intermixed  with  customary  rules  which 
rest  only  on  tradition  or  precedent,  but  are  deemed  of 
practically  equal  authority.  Other  Constitutions  are 
works  of  conscious  art,  that  is  to  say,  they  are  the  result 
of  a  deliberate  effort  on  the  part  of  the  State  to  lay  down 
once  for  all  a  body  of  coherent  provisions  under  which  its 
government  shall  be  established  and  conducted.  Such 
Constitutions  are  usually  comprised  in  one  instrument — 


128  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

possibly,  however,  in  more  than  one — an  instrument 
solemnly  enacted  whose  form  and  title  distinguish  it 
from  ordinary  laws.  We  may  provisionally  call  these 
two  types  the  Old  and  the  New,  because  all  ancient  and 
mediaeval  as  well  as  some  few  recent  Constitutions  are 
of  the  former  kind,  while  most  modern  ones  belong  to 
the  latter.  The  distinction  corresponds  roughly  to  that 
drawn,  in  England  and  America,  between  common  law 
and  statute  law,  or  to  the  Roman  distinction  between 
ins  and  lex,  so  that  we  might  describe  the  types  as  Com- 
mon Law  Constitutions  and  Statutory  Constitutions  re- 
spectively. Yet  the  line  of  demarcation  is  not  always  a 
plain  one.  In  countries  with  constitutions  of  the  Com- 
mon Law  type,  statutes  are  frequently  passed,  declaring 
or  modifying  or  abolishing  antecedent  usage,  which  su- 
persede and  replace  parts,  possibly  large  parts,  of  the 
common  law  maxims,  so  that  at  last  most  of  the  leading 
rules  can  be  found  in  a  few  great  statutes.  On  the  other 
hand,  the  Statutory  Constitutions  become  developed  by 
interpretation  and  fringed  with  decisions  and  enlarged 
or  warped  by  custom,  so  that  after  a  time  the  letter  of 
their  text  no  longer  conveys  their  full  effect.  It  is, 
therefore,  desirable  to  have  some  more  definite  and 
characteristic  test  or  criterion  whereby  to  mark  off  the 
two  types  which  have  been  just  described  in  general 
terms. 

III.    A  PROPOSED  NEW  CLASSIFICATION  OF 
CONSTITUTIONS. 

Such  a  criterion  may  be  found  in  the  relation  which 
each  Constitution  bears  to  the  ordinary  laws  of  the  State, 
and  to  the  ordinary  authority  which  enacts  those  laws. 
Some  constitutions,  including  all  that  belong  to  the 
older  or  Common  Law  type,  are  on  the  level  of  the 
other  laws  of  the  country,  whether  those  laws  exist  in 
the  form  of  statutes  only,  or  also  in  the  form  of  recorded 
decisions  defining  and  confirming  a  custom.  Such  con- 


FLEXIBLE  AXD  RIGID   CONSTITUTIONS  129 

stitutions  proceed  from  the  same  authorities  which  make 
the  ordinary  laws  ;  and  they  are  promulgated  or  repealed 
in  the  same  way  as  ordinary  laws.  In  such  cases  the  term 
'  Constitution  '  denotes  nothing  more  than  such  and  so 
many  of  the  statutes  and  customs  of  the  country  as  deter- 
mine the  form  and  arrangements  of  its  political  system. 
And  (as  will  presently  appear)  it  is  often  difficult  to  say 
of  any  particular  law  whether  it  is  or  is  not  a  part  of  the 
political  Constitution. 

Other  constitutions,  most  of  them  belonging  to  the 
newer  or  Statutory  class,  stand  above  the  other  laws  of 
the  country  which  they  regulate.  The  instrument  (or 
instruments)  in  which  such  a  constitution  is  embodied 
proceeds  from  a  source  different  from  that  whence  spring 
the  other  laws,  is  repealable  in  a  different  way,  exerts  a 
superior  force.  It  is  enacted,  not  by  the  ordinary  legis- 
lative authority,  but  by  some  higher  or  specially  em- 
powered person  or  body.  If  it  is  susceptible  of  change, 
it  can  be  changed  only  by  that  authority  or  by  that  special 
person  or  body.  When  any  of  its  provisions  conflict  with 
a  provision  of  the  ordinary  law,  it  prevails,  and  the  ordi- 
nary law  must  give  way.  These  are  features,  partly 
political,  partly  legal,  which  mark  off  the  two  types  of 
Constitution  from  one  another;  and  although  it  will 
appear  that  in  some  few  cases  the  question  to  which 
type  the  Constitution  of  a  particular  State  belongs  may 
be  a  nice  one,  still  the  general  legal  criteria  to  be  applied 
are  clear  and  definite.  In  a  State  possessing  a  constitu- 
tion of  the  former — the  older — type,  all  laws  (excluding 
of  course  by-laws,  municipal  regulations,  and  so  forth) 
are  of  the  same  rank  and  exert  the  same  force.  There 
is,  moreover,  only  one  legislative  authority  competent 
to  pass  laws  in  all  cases  and  for  all  purposes.  But  in  a 
State  whose  Constitution  belongs  to  the  latter — the 
newer — type,  there  are  two  kinds  of  laws,  one  kind  higher 
than  the  other,  and  more  universally  potent ;  and  there 
are  likewise  two  legislative  authorities,  one  superior  and 
capable  of  legislating  for  all  purposes  whatsoever,  the 
9 


130  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

other  inferior  and  capable  of  legislating  only  so  far  as  the 
superior  authority  has  given  it  the  right  and  function  to 
do  so. 

The  difference  of  these  two  types  is  best  explained 
by  illustrative  instances.  At  Rome  in  the  second  cen- 
tury B.  c.  there  was  but  one  kind  of  enactment.  All 
leges  passed  by  the  general  assembly  (whether  comitia 
centuriata  or  comitia  tributa)  were  of  the  same  gene- 
rality and  the  same  force.  There  was  but  one  legis- 
lative authority,  the  people  voting  in  the  comitia.  So  in 
England,  during  the  last  few  centuries,  there  has  been 
but  one  direct  legislative  authority,  viz.  Parliament, 
which  is  supreme,  and  all  whose  acts  bind  every  citizen 
everywhere.  Accordingly  in  England  the  laws  called 
constitutional  differ  only  in  respect  of  their  subject- 
matter  from  other  laws,  but  are  of  no  higher  order. 
Each  of  such  laws,  though  we  call  them  in  their  totality 
*  the  British  Constitution,'  is  alterable  by  the  ordinary 
legislative  authority  at  any  moment,  just  like  other  laws. 
Between  an  Act  for  making  a  railway  from  Manchester 
to  Liverpool  and  an  Act  extending  the  electoral  suffrage 
to  all  householders  or  disestablishing  the  Protestant 
Episcopal  Church  in  Ireland  there  is  no  difference  what- 
ever in  point  of  form  or  in  degree  of  authority.  In 
Switzerland,  however,  and  in  France  the  case  is  different. 
The  Constitution  of  the  Swiss  Confederation  is  a  docu- 
ment which  was  enacted  by  the  people,  and  any  amend- 
ment of  which  needs  to  be  similarly  enacted  by  them, 
whereas  ordinary  laws  are  passed  by  the  Federal  legisla- 
ture of  two  Houses1.  The  present  Constitution  of  the 
French  Republic  was  enacted  by  the  two  Chambers  sit- 
ting together  as  a  Constituent  Assembly,  and  can  be 
amended  only  by  the  Chambers  sitting  together  in  that 
capacity,  after  each  Chamber  has  separately  resolved  that 
revision  is  needed,  whereas  ordinary  laws  are  passed  by 

1  It  is  unnecessary  for  the  present  purpose  to  call  attention  to  the  complication 
introduced  in  Switzerland  by  the  application  of  the  Referendum  plan  to  ordinary 
laws. 


FLEXinLi:   AM)  RIGID   CONSTITUTIONS  131 

the  two  Chambers  sitting  separately.  Thus  both  in 
Switzerland  and  in  France  there  is  a  distinction  in  the 
enacting  authority,  and  therewith  also  a  distinction  in 
the  quality  and  force  of  the  laws  enacted,  the  law  which  is 
called  the  Constitution  being  entirely  superior  to  the 
other  laws  which  are  passed  by  the  legislature  in  the 
ordinary  every-day  course  of  its  action. 

What  in  the  case  of  each  State  of  the  latter  or  newer 
type  may  be  the  higher  (and  indeed  supreme)  authority 
which  is  alone  competent  to  enact  a  Constitution  depends 
upon  the  provisions  of  each  particular  system.  It  may  be 
the  whole  people,  voting  by  what  is  sometimes,  though 
not  very  happily,  called  a  plebiscite.  It  may  be  a  body 
specially  elected  for  the  purpose,  which  dissolves  when 
its  work  has  been  completed.  It  may  be  certain  local 
bodies,  each  voting  separately  on  the  same  instrument 
submitted  to  them.  It  may  be,  as  in  the  case  just 
mentioned  of  France,  the  ordinary  legislature  sitting  in 
a  peculiar  way,  or  acting  by  a  prescribed  majority,  or 
rendering  several  successive  votes  to  the  same  effect 
at  prescribed  intervals  of  time.  These  are  matters  of 
detail.  The  essential  point  is  that  in  States  possessing 
Constitutions  of  the  newer  type  that  paramount  or  fun- 
damental law  which  is  called  the  Constitution  takes 
rank  above  the  ordinary  laws,  and  cannot  be  changed 
by  the  ordinary  legislative  authority. 

I  have  sought  in  many  quarters  for  names,  necessarily 
metaphorical  names,  suitable  to  describe  these  two  types 
of  Constitution.  They  might  be  called  Moving  and 
Stationary,  because  those  of  the  older  kind  are  virtually 
never  at  rest,  but  are  always  undergoing  some  sort  of 
change,  however  slight,  in  the  course  of  ordinary  legis- 
lation, while  those  of  the  newer  type  abide  fixed  and 
stable  in  their  place.  Or  they  might  be  described,  the 
former  as  Fluid,  and  the  latter  as  Solid  or  Crystallized. 
When  a  man  desires  to  change  1  the  composition  of  a 
liquid,  he  pours  in  some  other  liquid  or  dissolves  a  solid 

1  /.  f.  to  change  mechanically,  not  necessarily  chemically. 


132  FLEXIBLE  AND  RIGID  CONSTITUTIONS 

in  the  liquid,  and  shakes  the  mixture.  But  he  who  wishes 
to  alter  the  composition  of  a  solid  must  first  dissolve 
it  or  fuse  it,  and  then,  having  got  it  into  a  liquid  or  gase- 
ous state,  must  mix  in  or  extract  (as  the  case  may  be)  the 
other  substance.  The  analogy  between  these  two  pro- 
cesses and  those  whereby  a  Constitution  of  the  older  and 
one  of  the  newer  type  are  respectively  changed  might 
justify  these  names.  But  there  is  another  and  simpler 
metaphor,  which,  though  not  quite  perfect,  seems  on 
the  whole  preferable.  Constitutions  of  the  older  type 
may  be  called  Flexible,  because  they  have  elasticity, 
because  they  can  be  bent  and  altered  in  form  while  re- 
taining their  main  features.  Constitutions  of  the  newer 
kind  cannot,  because  their  lines  are  hard  and  fixed. 
They  may  therefore  receive  the  name  of  Rigid  Consti- 
tutions:  and  by  these  two  names  I  propose  that  we 
shall  call  them  for  the  purposes  of  this  inquiry.  If 
the  characteristics  of  the  two  types  have  not  been  made 
sufficiently  clear  by  what  has  been  already  said,  they 
will  probably  become  clear  in  the  more  detailed  ex- 
amination of  them,  to  which  we  may  now  proceed. 

I  begin  with  Flexible  Constitutions,  not  only  because 
they  are  more  familiar  to  students  of  Roman  history 
and  to  Englishmen,  but  also  because  they  are  anterior 
in  date.  They  are  indeed  the  only  constitutions  which 
the  ancient  world  possessed,  for  although,  in  the  absence 
of  Aristotle's  famous  treatise  On  Polities,  we  know  com- 
paratively little  about  most  of  the  constitutions  even  of 
the  more  famous  Greek  cities  (except  Athens),  and  prac- 
tically nothing  about  any  others,  save  those  of  Rome 
and  Carthage,  there  are  reasons,  to  be  given  presently, 
why  we  may  safely  assume  that  all  of  them  belonged 
to  the  Flexible  type.  But  in  the  modern  world  they 
have  become  rare.  Excluding  despotically  governed 
countries,  such  as  Russia,  Turkey,  and  Montenegro, 
there  are  now  only  three  in  Europe,  those  of  the  United 
Kingdom,  of  Hungary — an  ancient  and  very  interesting 
Constitution,  presenting  remarkable  analogies  to  that 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  133 

of  England — and  of  Italy,  whose  constitution,  though 
originally  set  forth  in  one  document,  has  been  so  changed 
by  legislation  as  to  seem  now  properly  referable  to  the 
Flexible  type.  Elsewhere  than  in  Europe,  all  Consti- 
tutions would  appear  to  be  Rigid  1. 

But  a  preliminary  objection  deserves  to  be  first  con- 
sidered. Can  we  properly  talk  of  a  Constitution  at  all 
in  States  which,  like  Rome  and  England,  draw  no  formal 
and  technical  distinction  between  laws  of  different  kinds  ? 
Since  there  was  at  Rome  and  is  in  England  but  one  legis- 
lative authority,  and  all  its  statutes  are  of  equal  force, 
how  distinguish  those  which  relate  to  the  general  frame 
of  government  from  those  which  embody  the  minor 
details  of  administration?  The  great  Reform  Act  of 
A.  D.  1832,  for  instance — and  the  same  remark  applies 
to  the  parliamentary  reform  Acts  of  1867  and  1884 — 
was  clearly  a  constitutional  statute.  But  it  contained 
minor  provisions  which  no  one  could  call  fundamental, 
and  some  of  which  were  soon  changed  by  other  statutes 
which  would  scarcely  be  described  as  constitutional. 
There  are  many  statutes  of  which,  as  of  the  Municipal 
Reform  Act  of  1834  (and  I  may  add  as  of  the  Local 
Government  Acts  of  1888  and  1894),  it  would  be  hard 
to  say  whether  they  are  or  are  not  constitutional  statutes, 
and  there  are  statutes  which  would  not  be  termed  consti- 
tutional (such  as  the  Scottish  Universities  Act  of  1852), 
which  have  in  fact  modified  such  a  momentous  consti- 
tutional document  as  the  Act  of  Union  with  Scotland 
(5  Anne,  c.  6,  art.  xxv). 

Technically,  therefore,  we  cannot  draw  a  distinction 
between  constitutional  and  other  laws.  There  was  in 
strictness  no  Roman  Constitution.  There  is  no  British 
Constitution.  That  is  to  say,  there  are  no  laws  which 
can  be  definitely  marked  off  as  Fundamental  Laws,  de- 
fining and  distributing  the  powers  of  government,  the 
mode  of  creating  public  authorities,  the  rights  and  immu- 

1  Except  that  of  the  South  African  Republic  (Transvaal).  The  cases  of  the 
British  self-governing  colonies  will  be  presently  referred  to. 


134  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

nities  of  the  citizen.  That  which  we  call  the  Constitu- 
tion of  the  Roman  State,  that  which  we  now  call  the 
Constitution  of  the  United  Kingdom,  is  a  mass  of  prece- 
dents, carried  in  men's  memories  or  recorded  in  writing, 
of  dicta  of  lawyers  or  statesmen,  of  customs,  usages,  un- 
derstandings and  beliefs  bearing  upon  the  methods  of 
government,  together  with  a  certain  number  of  statutes, 
some  of  them  containing  matters  of  petty  detail,  others 
relating  to  private  just  as  much  as  to  public  law,  nearly 
all  of  them  presupposing  and  mixed  up  with  precedents 
and  customs,  and  all  of  them  covered  with  a  parasitic 
growth  of  legal  decisions  and  political  habits,  apart  from 
which  the  statutes  would  be  almost  unworkable,  or  at 
any  rate  quite  different  in  their  working  from  what  they 
really  are.  The  most  skilful  classifier  could  not  draw 
up  a  list  that  would  bear  criticism  of  Roman  or  of  British 
statutes  embodying  the  Constitution  of  either  State : 
and  even  if  such  a  list  were  prepared,  the  statutes  so 
classified  would  fail  to  contain  some  cardinal  doctrines 
and  rules.  Such  a  list,  for  instance,  of  British  statutes 
would  contain  nothing  about  the  Cabinet,  and  very  little 
about  the  relations  of  the  House  of  Commons  to  the 
House  of  Lords.  On  such  subjects  as  the  control  of  the 
House  of  Commons  over  foreign  affairs,  the  obligation  of 
the  Crown  to  take,  or  the  possible  right  of  the  Crown  in 
certain  cases  to  overrule,  the  advice  of  its  ministers,  no 
light  would  be  thrown.  Yet  the  statutes  form  the  clearest 
and  most  manageable  part  of  the  materials  which  make 
up  the  British  Constitution.  Those  other  materials  which 
have  been  referred  to  are  by  their  very  nature  vague 
and  indeterminate,  unsusceptible  of  classification,  and  in 
many  instances  incapable  of  being  set  forth  in  definite 
rules  1.  A  certain  part  of  them  is  already,  or  is  on  the 
way  to  become,  obsolete.  Another  part  is  matter  of 
controversy  between  different  schools  of  jurists  or  his- 
torians. The  same  thing  was  true  of  Rome,  for  at  Rome 

1  This  point  has  been  brought  out  with  admirable  force  in  Mr.  Dicey's  Law  of 
the  Constitution. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  135 

it  would  seem  that  no  statute  defined  the  power  of  the 
consuls,  nor  their  relation  to  the  Senate,  nor  set  limits 
to  the  quasi-legislative  authority  of  that  great  magistrate 
the  Praetor.  So  far  from  being  clearly  ascertained  were 
the  powers  of  the  Senate,  that  in  Cicero's  time  it  was 
matter  of  constitutional  debate  whether  its  decrees  had 
or  had  not  the  full  force  of  law  1 ;  and  men  took  one  view 
or  the  other  according  to  their  political  proclivities,  just 
as  in  England  men  at  one  time  differed  regarding  the 
right  of  the  House  of  Lords  to  deal  with  money  bills. 

These  facts  are  of  course  obvious  enough  to-day  to 
every  English  lawyer,  and  indeed  to  those  laymen  who 
have  some  tincture  of  historical  or  legal  knowledge. 
It  is  otherwise  with  the  general  public.  To  them  the 
word  Constitution  seems  to  represent  something  defi- 
nite and  positive.  Much  of  the  current  talk  about  the 
danger  of  altering  the  British  Constitution  2  seems  to 
spring  from  the  notion  that  the  name  represents  a  con- 
crete thing,  an  ascertainable  and  positive  definite  body 
of  rules  laid  down  in  black  and  white.  The  Romans  had 
no  single  word  to  convey  what  we  mean  by  '  Constitu- 
tion.' Even  in  the  last  days  of  the  Republic  Cicero 
had  to  use  such  phrases  as  forma,  or  ratio,  or  genus  rei 
publicac,  or  leges  ct  instituta;  and  what  we  call  '  consti- 
tutional law '  appears  in  the  jurists  of  the  Empire  as 
ins  quod  ad  statum  rei  Romanae  spectat 3. 

The  objection,  however,  which  we  have  been  con- 
sidering, goes  only  to  misconceptions  that  may  arise 
from  the  word  '  Constitution,'  not  to  the  use  of  the  word 
itself,  for  some  such  word  is  indispensable.  The  thing 
exists,  and  there  must  be  a  name  to  describe  it.  A  thing 
is  not  the  less  real  because  its  limits  cannot  be  sharply 
defined.  A  hill  is  a  hill  and  a  plain  a  plain,  though  you 
cannot  fix  the  point  where  the  hill  subsides  into  the  plain. 

I  See  as  to  this,  Essay  XIV,  p.  716. 

II  I  have  allowed  these  lines  to  remain,  though  they  were  more  applicable  in 
1884  than  they  are  in  1900,  when  so  many  changes  have  been  effected  that  argu- 
ments about  the  danger  of  changing  the  Constitution  are  less  frequently  heard. 

3  Ulpian  in  Digest,  i.  i,  2. 


136  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

The  aggregate  of  the  laws  and  customs  through  and 
under  which  the  public  life  of  a  State  goes  on  may  fitly  be 
called  its  Constitution;  and  even  the  still  vaguer  phrases, 
'  Spirit  of  the  Constitution,'  '  Principles  of  the  Constitu- 
tion,' may  properly  be  used,  since  they  too  describe  a 
general  quality  or  tendency  pervading  the  whole  mass 
of  laws  and  customs  that  rule  a  State  which  gives  to  this 
mass  a  character  differing  from  that  of  the  Constitution 
of  any  other  State ;  just  as  each  great  nation  has  what  we 
call  a  National  Character,  though  this  character  can  be 
more  easily  recognized  than  defined. 


IV.    THE  ORIGIN  OF  FLEXIBLE  CONSTITUTIONS. 

Now  let  us  return  to  consider  the  history  and  the 
attributes  of  Flexible  Constitutions.  We  have  seen 
that  they  are  older  than  those  of  the  Rigid  type.  It 
may  be  thought  that  this  is  so  because  they  are  more 
compatible  with  a  rude  condition  of  society,  and  be- 
cause springing  out  of  custom,  always  the  first  source 
of  law,  they  are  the  simplest  and  most  obvious  form 
which  regular  political  society  can  take.  This  is  true, 
but  does  not  fully  explain  the  phenomena. 

A  Constitution  properly  so  called  is  a  frame  of  political 
society  organized  through  and  by  law,  that  is  to  say,  one 
in  which  law  has  established  permanent  institutions  with 
recognized  functions  and  definite  rights.  Now  such 
forms  of  organized  political  society  appear  first  in  small 
communities,  whether  Urban,  like  the  City  States  of 
Greece,  or  Rural,  like  those  of  early  England  or  mediae- 
val Switzerland.  Wherever  in  the  earlier  stages  of  civili- 
zation we  find  large  communities,  like  Egypt,  Assyria, 
Peru,  Russia  in  the  sixteenth  century,  we  find  that  a 
tribal  organization  has  passed  into  a  despotism1,  appa- 

1  I  use  the  term  '  despotism '  for  convenience,  but  of  course  no  monarchy  is  ab- 
solutely despotic,  and  least  of  all  perhaps  in  the  ruder  ages ;  for  monarchs  are 
always  amenable  to  public  opinion,  and  most  so  when  they  are  the  leaders  of  a 
tribe  or  people  in  arms.  The  real  distinction  is  between  a  government  checked 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  137 

rently  without  passing  through  the  intermediate  stage 
of  a  more  or  less  restricted  monarchy.  Now  in  a  small 
area  men  usually  organize  themselves  in  a  regular  com- 
munity by  vesting  legal  authority  in  a  mass  meeting  of 
the  citizens.  The  Folk  Mot  of  our  Teutonic  ances- 
tors, like  the  still  surviving  Landesgemeinde  of  Uri  or 
Appenzell,  represents  in  a  rural  community  what  the 
dyopd  represents  in  Homeric  Greece,  what  the  cKKX^o-ta 
represents  in  the  later  Greek  cities,  and  what  the  comitia 
represent  at  Rome ;  I  might  add,  what  (in  a  more  rudi- 
mentary form)  the  popular  meeting  represents  to-day  in 
Albania  and  what  the  similar  meeting  called  a  Pitso  re- 
presents among  the  Basuto  and  Bechuana  Kafirs.  Such 
meetings,  like  the  New  England  Town  Meeting,  are 
Primary,  not  Representative.  They  consist  of  all  the 
freemen  within  the  community,  though,  in  their  earlier 
stage,  it  is  in  practice  the  leading  men  who  determine 
the  action  of  the  whole  assembly.  They  make  such  laws 
as  there  are.  Being  not  only  the  supreme,  but  the  only 
legislative  authority,  they  can  at  any  moment  change  the 
laws  they  deem  fundamental,  if  there  are  any  such  laws, 
for  the  more  backward  races  remain  in  the  stage  of  mere 
custom,  and  do  not  reach  the  conception  of  a  funda- 
mental law.  Whether  the  system  of  their  government  is 
formally  embodied  in  one  group  of  specially  important 
laws,  or,  as  more  often  happens,  is  left  to  be  collected 
from  a  number  of  enactments  connected  and  supple- 
mented by  usages,  that  system  remains  on  a  level  with 
all  the  other  laws  and  usages,  because  it  emanates 
from  the  same  source,  viz.  the  governing  primary 
assembly.  It  is  not  till  the  growth  of  some  scheme  of 
representation  has  made  familiar  the  distinction  between 
the  authority  of  the  people  themselves  and  that  of  their 

by  religious  sentiment  consecrating  ancient  usage  and  by  the  fear  of  insurrection, 
and  a  government  checked  by  well-established  institutions  and  legal  rules.  As  to 
Russia,  it  may  be  noted  that  though  she  has  no  Constitution  in  the  proper  sense, 
there  are  said  to  exist  three  Fundamental  Laws  of  the  Empire — that  declaring 
the  sovereign's  autocratic  power,  that  requiring  him  (or  her)  to  be  a  member  of 
the  Orthodox  Church  of  the  East,  and  that  fixing  the  rule  of  succession  to  the 
throne. 


138  FLEXIBLE  AND  RIGID   CONSTITUTION 8 

representatives  that  truly  Rigid  Constitutions  appear, 
for  it  is  not  till  then  that  a  method  suggests  itself  of 
enacting  a  kind  of  law  which  shall  be  superior  to  that 
which  the  ordinary  legislative  body  creates.  Accordingly 
the  Primary  Assembly,  whether  in  ancient  Greece  and 
Italy  or  in  mediaeval  Europe,  works  for  some  time,  and 
may  create  by  its  constant  action  what  is  practically 
a  Constitution  (i.e.  a  set  of  established  rules  embodying 
and  directing  the  practice  of  government),  before  the 
idea  of  a  regular  political  Constitution  emerges.  That 
idea  comes  into  being  when  in  the  progress  of  political 
thought  and  of  jurisprudence  men  begin  to  distinguish 
between  laws  and  customs  which  relate  to  the  structure 
of  the  State  and  the  management  of  its  affairs  and 
those  which  relate  to  other  matters,  such  as  the  civil 
rights  of  individuals ;  and  when  they  also  distinguish 
between  rules  and  usages  which  are  fixed  and  settled, 
because  generally  observed  and  regularly  applied  to  re- 
current facts,  and  the  particular  decisions  taken  in  parti- 
cular cases.  In  this  sense  the  Romans  may  have  begun 
to  feel  they  had  a  Constitution  before  they  had  gone  far 
in  the  conquest  of  Italy.  Our  English  ancestors  reached 
the  same  consciousness  in  the  fourteenth  century,  when 
much  stress  began  to  be  laid  upon  political  precedents, 
and  Parliament,  by  this  time  a  Representative  body,  and 
thereby  entitled  to  speak  for  the  nation,  had  definitely 
established  its  rights  as  against  the  Crown  1.  The  Con- 
firmation of  the  Charters  together  with  the  statute  De 
Tallagio  Non  Concedendo  of  A.  D.  1297  is  often  taken  as 
marking  the  first  form  of  the  plainly  settled  English  Con- 
stitution, but  perhaps  the  successful  resistance  of  Parlia- 
ment to  King  Edward  the  Third  sixty  years  later  is  a 
better  point  to  choose.  Anyhow  the  language  of  Chief 

1  The  history  of  England  illustrates  what  is  here  said  regarding  small  and 
large  communities.  The  Folk  Mot  of  the  West  Saxons  when  it  passed  into  the 
Magnum  Concilium  of  all  England,  though  it  remained  in  theory  a  Primary  As- 
sembly, was  practically  no  longer  a  meeting  of  all  freemen.  It  could  not  have 
continued  to  embody  and  safeguard  the  constitutional  rights  of  the  people  but  for 
the  later  invention  of  Representation,  which  made  it  again  a  virtually  Popular 
though  no  longer  a  Primary  Assembly. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  139 

Justice  Fortescue  (under  Henry  the  Sixth)  shows  how 
clearly  drawn  the  main  lines  of  the  Constitution  had  be- 
come in  his  time.  When  this  stage  has  been  reached, 
efforts  are  sometimes  made  to  give  to  these  constitu- 
tional rules,  or  to  certain  among  them,  an  exceptional 
degree  of  force  and  permanence.  Such  rules  may  be 
embodied  in  a  document  of  special  sanctity ;  or  they  may 
be  protected  by  oaths.  But  the  creation  of  a  truly  Rigid 
Constitution  comes  later,  when  some  system  of  repre- 
sentation has  appeared.  I  shall  presently  return  to  ex- 
amine the  causes  which  produce  it. 

V.    THE  STRENGTH  AND  WEAKNESS  OF  FLEXIBLE 
CONSTITUTIONS. 

The  names  *  Flexible  '  or  '  Fluid,'  which  I  have  sug- 
gested for  Constitutions  of  this  type,  seem  to  suggest 
that  they  are  unstable,  with  no  guarantee  of  solidity 
and  permanence.  They  are  in  a  state  of  perpetual  flux, 
like  the  river  of  Heraclitus,  into  which  a  man  cannot 
step  twice.  Not  only  are  new  laws  constantly  passed 
which  more  or  less  affect  them,  but  their  mere  working 
tends  to  alter  them  daily.  Just  as  every  man's  character 
is  being  every  day  insensibly  modified  by  the  acts  he  does, 
by  the  thoughts  he  cherishes,  by  the  emotions  which  each 
new  experience  of  life  brings  with  it,  so  every  decade 
saw  the  Constitution  of  Rome,  and  sees  the  Constitution 
of  England,  slightly  different  at  the  end  of  even  so  short 
a  period  from  what  it  was  at  the  beginning.  Even  a  de- 
liberately conservative  policy  cannot  arrest  this  process 
of  variation.  If  the  change  does  not  for  a  time  appear 
in  the  laws,  it  is  in  progress  in  the  minds  of  men,  and  may 
have  all  the  more  violent  a  working  when  it  begins  to 
tell  upon  legislation.  A  reaction,  such  as  that  carried 
through  by  Lucius  Cornelius  Sulla  at  Rome,  or  that 
which  followed  the  fall  of  the  Cromwellian  Protectorate 
in  England,  is  almost  as  fertile  in  change  as  a  time  of 
revolution.  The  past  can  never  be  effaced,  since  the 


140  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

recollection  of  it  is  an  element  in  shaping  the  future,  and 
the  measures  taken  to  restore  a  status  quo  ante  always 
contain  much  which  was  not  in  that  status  quo  ante,  much 
which  is  in  itself  new,  and  the  source  of  further  novelties. 
The  only  cases  in  which  constitutional  development  can 
be  said  to  stop  are  those  where,  as  at  Venice  and  in  some 
of  the  cities  of  post-mediaeval  Switzerland,  an  oligarchy 
gets  control  of  the  government,  and,  in  extinguishing 
the  spirit  and  the  habits  of  freedom,  arrests  the  natural 
processes  of  movement  and  development  until  some 
powerful  neighbour  overthrows  the  State,  or  internal 
economic  changes  induce  a  revolution.  Even  under  a 
despotism,  the  system  of  government  changes  insensibly 
from  century  to  century,  as  it  did  in  the  old  French 
monarchy,  and  as  it  has  recently  done  among  a  people 
so  stagnant  as  the  Turks.  But  despotic  systems,  being 
scarcely  classifiable  as  Constitutions,  do  not  come  within 
our  present  inquiry. 

These  things  being  so,  it  seems  natural  to  assume  that 
Flexible  (the  so-called  'unwritten')  Constitutions,  having 
been  enacted  and  being  alterable  by  the  ordinary  legis- 
lative authority,  and  not  being  contained  in  any  specially 
sacred  instrument,  will  in  fact  be  subject  to  frequent  and 
large  changes,  and  will  moreover  be  so  readily  trans- 
gressed in  practice,  that  they  will  furnish  an  insufficient 
guarantee  for  public  order  and  for  the  protection  of 
private  rights. 

The  facts,  however,  do  not  support  this  assumption. 
Let  us  take  our  two  typical  instances,  Rome  and  Eng- 
land. The  Roman  Constitution  is  an  extreme  case  of 
a  Frame  of  Government  capable  of  being  changed  in 
the  quickest  and  simplest  way.  Nothing  was  needed 
but  a  vote  of  the  comitia,  on  the  proposition  of  a  com- 
petent magistrate,  accompanied  by  the  silence  of  the 
tribunes.  No  doubt  any  single  tribune  could  paralyse 
the  action  of  the  comitia,  but  in  such  a  community  as 
Rome  became  in  the  later  days  of  the  Republic  it  must 
often  have  been  easy  for  those  who  desired  a  change 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  141 

to  '  get  at,'  or  to  remove,  an  obnoxious  tribune.  Yet 
the  Constitution  of  Rome,  regarded  on  its  legal  side, 
changed  comparatively  little  in  the  three  centuries  that 
lie  between  the  Licinian  laws  and  the  age  of  Sulla,  for 
most  of  those  deviations  from  ancient  usage  which,  as 
we  can  now  see,  were  working  towards  its  fall,  were  in 
form  quite  legal,  being  merely  occasional  resorts  to  ex- 
pedients which  the  Constitution  recognized,  though  they 
had  been  more  rarely  and  more  cautiously  used  in  older 
and  better  days.  So  in  England,  the  exercise  of  the 
sovereign  power  is  lodged  in  an  assembly  which  can,  on 
occasion,  act  with  extraordinary  promptitude,  as  when 
some  while  ago  (April  9,  1883)  the  Explosives  Act  was 
passed  through  the  House  of  Commons  in  a  few  hours 
(the  standing  orders  having  been  suspended),  and  having 
been  forthwith  passed  by  the  House  of  Lords  also,  re- 
ceived the  royal  assent  next  day.  So  the  most  sacred 
rules  and  principles  of  the  Constitution  might  with  per- 
fect legality  of  form  be  abolished — Magna  Charta  and 
the  Bill  of  Rights  and  the  Act  of  Settlement  included — 
just  as  quickly  as  the  Explosives  Act  was  passed.  Yet 
the  main  lines  of  the  English  frame  of  government  have 
since  1689  and  1701  remained  legally  the  same ;  and  the 
most  important  changes  made  since  the  latter  year  have 
been  effected  after  long  and  strenuous  controversies1. 
We  all  know  how  hard  it  is  to  secure  even  small  con- 
stitutional improvements,  such  as  the  abolition  of  the 
provision,  confessedly  useless  and  certainly  troublesome, 
which  obliges  a  member  of  the  House  of  Commons  to 
vacate  his  seat  and  seek  re-election  on  his  being  ap- 
pointed a  Minister  of  the  Crown. 

One  explanation  of  this  apparent  paradox  is  (though 
sometimes  neglected)  obvious  enough.  The  stability 
of  any  constitution  depends  not  so  much  on  its  form  as 
on  the  social  and  economic  forces  that  stand  behind  and 
support  it ;  and  if  the  form  of  the  constitution  corre- 

1  The  two  most  important  changes,  the  Union  with  Scotland  and  the  Union 
with  Ireland,  were,  however,  among  those  most  quickly  carried  through. 


142  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

spends  to  the  balance  of  those  forces,  their  support 
maintains  it  unchanged.  Two  other  reasons  deserve  to 
be  more  fully  stated. 

A  Flexible  or  Common  Law  Constitution  sometimes 
owes  its  stability  to  the  very  conditions  which  have 
enabled  it  to  grow  out  of  isolated  laws  and  mere  usages 
into  a  firmly  settled  Frame  of  Government.  There  have 
no  doubt  been  many  cases,  such  as  those  of  most  of  the 
Greek  cities  of  antiquity,  where  the  eager  restless  spirit 
of  the  people  and  the  violence  of  faction  never  allowed 
any  system  of  government  to  last  long  enough  to  strike 
deep  root.  Such  constitutions  were  often  enacted  all 
in  one  piece,  and  would  have  been  made  Rigid,  had  the 
citizens  who  enacted  them  known  how  to  make  them  so. 
They  were  seldom  the  growth  of  long-continued  usage. 
But  the  best  instances  of  Flexible  Constitutions  have 
been  those  which  grew  up  and  lived  on  in  nations  of 
a  conservative  temper,  nations  which  respected  antiquity, 
which  valued  precedents,  which  liked  to  go  on  doing 
a  thing  in  the  way  their  fathers  had  done  it  before  them. 
This  type  of  national  character  is  what  enables  the 
Flexible  Constitution  to  develop;  this  supports  and 
cherishes  it.  The  very  fact  that  the  legal  right  to  make 
extensive  changes  has  long  existed,  and  has  not  been 
abused,  disposes  an  assembly  to  be  cautious  and  mode- 
rate in  the  use  of  that  right.  Those  who  have  always 
enjoyed  power  are  least  likely  to  abuse  it 1.  This  truth 
might  be  illustrated  both  from  Rome  and  from  England ; 
and,  indeed,  from  Switzerland  also,  though  the  argument 
which  tries  to  prove  the  stupid  conservatism  of  demo- 
cracy from  the  habits  of  rural  communities  in  the  last- 
named  country  has  been  pressed  too  far  by  Sir  H.  Maine 
and  others,  since  in  rural  communities,  where  nearly 
every  one  is  a  citizen,  and  well  off,  and  most  men  about 
equally  well  off,  the  usual  motives  for  making  political 
changes  do  not  exist. 

A  further  reason  may  be  found  in  the  fact  that  a  con- 

1  ' ApxaioTrAovTcov  SecrjroTaiv  TroAArj  \apis,  Aesch.  A  gam.  1002. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  143 

stitution  which  has  come  down  in  the  form  of  a  mass  of 
laws,  precedents  and  customs  is  not  only  more  mysteri- 
ous, and  therefore  more  august,  to  the  minds  of  the  ordi- 
nary citizens  than  one  they  can  read  in  a  document,  but 
is  not  felt  by  them  to  lie  at  their  mercy  and  to  live  only 
by  their  pleasure.  A  constitution  embodied  in  a  docu- 
ment which  they  have  seen  drafted,  and  have  enacted  by 
their  votes,  has  no  element  of  antiquity  or  mystery.  It 
issues  from  the  sovereignty  of  the  people,  it  reminds 
them  of  their  sovereignty,  it  suggests  to  them  nothing 
more  exalted.  Perhaps  it  has  been  the  work  of  one 
party  in  the  State ;  and  if  that  party  becomes  discredited, 
it  may  share  the  discredit.  The  dignity  which  a  remote 
and  half  mythic  origin  gives  to  constitutions,  as  it  does 
to  royal  families,  was  in  the  ancient  world  and  the  Middle 
Ages  enhanced  by  religious  associations.  In  Greece  and 
Italy  the  tutelary  deities  of  the  city  watched  over  the 
oldest  laws.  In  mediaeval  countries  the  order  of  the 
State  seemed  an  expression  of  the  Will  of  God.  Although 
these  sentiments  have  vanished  from  the  modern  world, 
the  fact  that  an  old  constitution  represents  a  long  course 
of  progressive  development,  or,  to  use  a  somewhat  vul- 
garized term,  of  evolution,  gives  it  some  claim  on  the 
respect  of  imaginative  or  philosophical  minds.  These 
sources  of  moral  strength  have  been  found  sufficient 
in  many  countries  to  secure  an  enduring  life  for  political 
institutions  which  the  people,  or  a  legislative  body,  had 
it  in  their  power  to  change,  and  which,  in  some  instances, 
ought  to  have  been  replaced  by  other  institutions  more 
suited  to  their  altered  environment. 

It  would,  therefore,  be  an  error  to  pronounce  Flexible 
Constitutions  unstable.  Their  true  note,  their  distinctive 
merit,  is  to  be  elastic.  They  can  be  stretched  or  bent 
so  as  to  meet  emergencies,  without  breaking  their  frame- 
work ;  and  when  the  emergency  has  passed,  they  slip  back 
into  their  old  form,  like  a  tree  whose  outer  branches 
have  been  pulled  on  one  side  to  let  a  vehicle  pass.  Justbe- 
cause  their  form  is  not  rigidly  fixed,  a  temporary  change 


144  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

is  not  felt  to  be  a  serious  change.  The  sentiment  of  re- 
spect for  the  established  order  is  not  shaken.  The  old 
habits  are  maintained,  and  the  machine,  modified  perhaps 
in  some  detail  which  the  mass  of  the  people  scarcely 
notice,  seems  to  go  on  working  as  before. 

Whether  the  working  is  really  the  same  is  another 
matter.  During  two  centuries  and  a  half,  from  Edward 
the  Third  till  James  the  First,  the  Constitution  of  Eng- 
land remained  in  its  legal  aspect  scarcely  altered.  Though 
at  some  moments  within  that  period  Parliament  seemed 
to  have  mightily  gained  on  the  Crown,  and  at  others  the 
Crown  seemed  to  be  dominating  Parliament,  yet  it  was, 
until  the  Civil  War,  doubtful  whether  any  permanent 
change  had  been  effected.  From  the  days  of  Queen 
Anne  to  those  of  William  the  Fourth  the  Constitution 
preserved  a  legal  character  practically  the  same.  But 
it  had  been  altered  essentially  in  substance.  So  we  may 
say  that  while  the  Flexible  character  of  a  constitution 
sometimes  enables  it  to  recover  from  shocks  without 
injury,  that  character  sometimes  conceals  the  effects 
of  a  shock,  since  these  effects  may  take  the  form  of 
changes  of  usage  and  changes  of  opinion  among  the 
citizens  which  have  not  been  expressed,  perhaps  hardly 
can  be  expressed,  in  a  definite  legal  form.  The  relations 
to  one  another  of  the  two  Houses  of  the  British  Parlia- 
ment, and  the  relations  of  Parliament  to  the  now  self- 
governing  British  Colonies,  are  instances  in  point. 

No  constitution  illustrates  these  phenomena  better 
than  did  that  of  Rome.  It  was  a  complicated  piece  of 
work,  made  of  many  pieces,  firmly  attached,  yet  each 
piece  playing  freely.  It  had  to  be  bent,  twisted,  stretched 
in  many  ways,  under  the  pressure  of  divers  exigencies. 
But  it  stood  the  strain  of  being  bent  or  stretched,  and 
when  the  force  that  had  bent  it  was  withdrawn,  could 
return  so  nearly  to  its  original  shape  as  to  seem  to  have 
never  been  disturbed.  The  change  from  consuls  to 
military  tribunes,  the  frequent  appointment  of  a  dictator, 
the  memorable  episode  of  the  Decemvirate,  the  creation 


FLEXIBLE  ASD   RIGID   (.'OMtTirt  TK>\s  145 

of  new  magistracies,  even  the  admission  of  new  and 
sometimes  large  masses  of  persons  to  citizenship  and 
voting  power,  and  the  adaptation  of  its  old  machinery 
to  the  new  task  of  governing  conquered  provinces,  did 
not,  during  several  centuries,  permanently  disturb  its 
balance  or  seriously  shake  its  main  principles.  Sus- 
pensions of  the  ordinary  rights  of  the  private  citizen, 
extensions  of  the  ordinary  powers  of  the  magistrate, 
which  would  have  ruined  most  States  by  setting  dan- 
gerous precedents,  were  at  Rome  found  harmless  be- 
cause law  and  custom  recognized  them  as  expedients 
available  in  case  of  need,  and,  in  legalizing  them,  took 
away  their  revolutionary  character.  Thus,  being  parts 
of  the  Constitution,  though  parts  to  be  used  only  in 
emergencies,  they  did  not  shock  conservative  sentiment 
nor  encourage  attempts  pernicious  to  freedom — did  not, 
that  is  to  say,  until  at  last  the  character  of  the  city  popu- 
lation had  so  completely  changed  and  the  dominions  of 
the  Republic  had  so  prodigiously  grown  that  the  old 
Constitution  was  obviously  out  of  date,  unfit  for  work 
immensely  heavier  than  that  for  which  it  had  been 
constructed. 

A  Greek  city,  or  an  Italian  city  of  the  Middle  Ages, 
which  delivered  itself  into  the  hands  of  a  dictator  when 
pressed  by  its  neighbours,  almost  invariably  found  that 
it  had  given  itself  a  master  who  refused  to  resign  his 
power  when  the  danger  was  past,  but  continued  to  rule 
as  a  Tyrant  or  Signore.  This  happened  not  merely  be- 
cause the  people  were  passionate  and  the  leading  men 
ambitious,  for  there  was  plenty  both  of  passion  and 
of  ambition  among  the  Romans,  but  largely  because 
in  those  cities  no  provision  was  made  for  such  emer- 
gencies; so  that  when  it  became  necessary  to  place 
extraordinary  powers  in  one  or  few  hands,  the  Consti- 
tution received  a  violent  wrench,  from  which  it  might 
not  recover.  At  Rome  the  contingency  had  been  fore- 
seen, and  the  mode  of  meeting  it  was  legal.  A  spirit 
had  been  formed  among  the  body  of  the  people  as  well 

10 


146  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

as  among  the  leading  men  which  held  ambition  in  check. 
The  dictator  was  not  intoxicated  by  his  elevation.  The 
citizens  did  not  lose  their  faith  in  the  soundness  of  their 
system;  and  it  justified  their  confidence. 

The  elasticity  of  the  British  Constitution  appears  in 
somewhat  different  features,  less  striking  perhaps  than 
those  which  mark  Rome,  but  not  less  useful.  We  Eng- 
lish appoint  no  dictators,  seeing  that  we  have  always 
fortunately  had  a  permanent  head  of  the  Executive, 
though  latterly  one  rather  nominal  than  real,  and  Have 
seldom  been  exposed  to  the  dangers  which  the  city-states 
of  the  ancient. world  had  to  fear.  But  we  have  kept  in 
reserve  a  wide  and  vague  prerogative,  which,  though  it 
cannot  in  practice  be  put  in  force  against  the  will  of  the 
representative  House  of  Parliament,  may  be  employed 
to  effect  things  far  more  important  than  many  other 
things  for  which  express  legislative  authority  is  required. 
The  control  of  the  army  and  navy  and  the  control  of 
foreign  policy  are  instances.  There  are,  moreover,  ways 
in  which  the  normal  powers  of  the  Executive  may  be 
immensely  increased.  When  a  statute,  such  as  the 
Habeas  Corpus  Act,  is  suspended,  or  when  a  Vote  of 
Credit  for  a  very  large  sum  of  money  is  passed,  the 
control  of  the  ordinary  law  and  courts  in  the  one  case, 
and  the  control  of  the  House  of  Commons  in  the  other 
case,  over  the  Ministers  of  the  Crown,  is  for  the  time 
being  (especially  if  Parliament  is  not  sitting)  and  for 
some  purposes  practically  suspended ;  and  the  Sovereign 
(or  rather  the  Cabinet)  of  to-day  is  almost  replaced  in 
the  position  of  the  last  Tudor  or  the  first  Stuart.  Strin- 
gent measures  to  repress  disorder  may  be  taken  at  home, 
military  operations  may  be  threatened  or  begun  abroad 
which  would  be  beyond  the  legal  competence  of  the 
Crown  in  the  former  case  and  its  ordinary  discretionary 
powers  and  functions,  as  fixed  by  custom,  in  the  latter. 
So  too  when  it  became  necessary  in  view,  not  of  an  emer- 
gency, but  of  the  general  convenience  of  administration, 
to  delegate  to  inferior  authorities  the  supreme  legisla- 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  147 

tive  power  of  Parliament,  advantage  was  taken  of  the  old 
royal  prerogative  and  of  that  ancient  body  the  Privy 
Council.  Parliament  gave  power  to  the  Crown  to  issue 
Orders  in  Council  dealing  with  large  classes  of  matters 
which  must  otherwise  have  been  dealt  with  by  statute ; 
and  these  Orders  take  effect  sometimes  at  once,  some- 
times when  a  certain  period  has  elapsed  during  which 
they  have  lain  before  Parliament  and  received  from  it  no 
disapproval.  In  this  way  a  vast  mass  of  secondary  le- 
gislation is  annually  enacted  which,  though  it  does  not 
directly  issue  from  Parliament,  carries  parliamentary 
authority,  and  does  not  infringe  the  principle  that  Par- 
liament is  the  only  true  source  of  law.  And,  similarly, 
out  of  the  ancient  judicial  functions  of  the  Crown  and 
of  the  Council  which  advised  the  Crown,  functions  which 
a  century  ago  seemed  to  be  lapsing  into  desuetude, 
there  has  been  evolved  a  new  system  of  judicature.  A 
body  called  the  Judicial  Committee  of  the  Privy  Council, 
somewhat  resembling  the  Consistory  of  the  Roman 
Emperors,  has  been  created,  and  now  acts  as  a  Supreme 
Court  of  Appeal  for  all  the  transmarine  possessions  of 
Britain,  whether  Indian  or  Colonial. 

The  merit  of  this  elastic  quality  in  such  Constitutions 
as  the  Roman  and  the  British  is  that  it  affords  a  means 
of  preventing  or  minimizing  revolutions  by  meeting 
them  halfway.  Let  us  note  how  each  kind  of  Consti- 
tution, the  Rigid  and  the  Flexible,  behaves  when  a 
serious  crisis  arrives,  in  which  one  section  of  the  nation 
is  bent  on  changing  the  Constitution,  and  the  other  on 
maintaining  it.  A  Rigid  Constitution,  if  the  legal  means 
provided  for  altering  it  cannot  be  used  for  the  want 
of  the  prescribed  legal  majority,  resists  the  pressure. 
It  may  of  course  resist  successfully,  but  if  so,  probably 
after  a  conflict  which  has  shaken  the  State  and  excited 
hostility  to  it  in  the  mirids  of  a  large  part  of  the  people. 
It  may,  however,  if  the  assailing  forces  are  very  strong, 
be  broken,  and  if  so,  broken  past  mending.  A  Flexible 
Constitution,  however,  being  more  easily  and  promptly 


148  FLEXIBLE  AND  RWID   CONSTITUTIONS 

alterable,  and  being  usually  a  less  firmly  welded  and 
cohesive  structure,  can  bend  without  breaking,  can  be 
modified  in  such  a  way  as  to  satisfy  popular  demands, 
can  escape  revolution  by  the  practical  submission  of 
one  of  the  contending  forces  in  the  particular  dispute, 
that  submission  being  recognized  as  a  precedent  which 
will  be  followed,  even  though  it  has  not  been  embodied 
in  any  law  or  other  formal  document.  The  extinction 
of  the  right  once  claimed  by  the  House  of  Lords  to 
alter  money  bills  is  one  instance.  Or  it  may  be  made 
to  evolve  some  organ  which,  though  really  new,  conceals 
its  novelty  by  keeping  some  of  the  old  colour,  and  thus 
it  may  continue  to  work  with  no  palpable  breach  of  con- 
tinuity. The  knowledge  that  a  constitution  can  be 
changed  without  any  tremendous  effort  helps  to  make 
a  party  of  revolution  less  violent  and  a  party  of  resist- 
ance less  stubborn,  disposing  both  to  some  compromise. 
At  Rome  the  resort  to  the  appointment  of  military  tri- 
bunes with  consular  power  when  the  plebs  demanded, 
and  the  patricians  would  not  yet  consent  to  the  election 
of  a  plebeian  Consul,  delayed  revolution  till  opinion  had 
so  changed  that  the  danger  of  revolution  had  passed 
away.  So,  later,  the  compromise  by  which  a  Praetor 
was  created  with  the  functions  of  a  Consul  but  with  a 
special  range  of  duties  appeased  conservative  feeling  and 
smoothed  the  passage  from  the  old  order  to  the  new. 
The  history  of  the  English  Constitution  is  a  history 
of  continual  small  changes,  no  single  one  of  which, 
hardly  even  the  Bill  of  Rights  at  the  time  of  the  so- 
called  Revolution,  or  the  Reform  Act  of  1832,  made 
the  system  look  substantially  different.  Something  no 
doubt  was  cut  away,  and  something  was  added,  but  the 
structure  as  a  whole  seemed  the  same,  because  far  more 
of  the  old  was  left  than  there  was  added  of  the  new. 

The  two  main  processes  which  have  turned  the  govern- 
ment of  England  from  the  monarchy  of  the  Tudors  into 
what  may  be  called  the  plutocratic  democracy  of  to-day 
have  been  the  limitation  of  the  royal  prerogative  and  the 


FLEXIBLE  AM)  JflUII)   OONBTITUTIOXB  149 

transference  of  the  right  of  suffrage  from  a  few  to  the 
multitude.  Both  processes  have  gone  on  slowly,  by  a 
succession  of  steps,  each  comparatively  small,  but  all 
in  the  same  direction.  Accordingly  the  strife  of  parties 
has  been  mitigated  by  the  existence  at  all,  or  nearly  all, 
moments,  of  a  large  body  of  persons  who  desired  reform, 
but  only  a  moderate  reform.  They  are  the  persons  who 
impose  compromise  on  the  extremists  to  the  right  and 
to  the  left  of  them,  and  they  can  do  so  because  the  Con- 
stitution permits  small  reforms  to  be  easily  effected. 
The  party  of  change,  which  would  be  a  party  of  revolu- 
tion if  it  was  obliged  to  have  large  changes  or  none,  is 
apt  to  be  divided,  and  its  more  moderate  section  is,  or 
soon  passes  into,  a  party  only  of  reform.  The  English 
Chartists  of  1840-50  caused  some  alarm.  But  between 
them  and  the  old  Constitutional  Whigs  there  were  several 
sections  of  opinion  passing  by  imperceptible  gradations 
into  one  another ;  and  when  it  was  seen  that  the  current 
was  setting  towards  changes  approximating  to  those 
which  the  Chartists  demanded,  their  less  violent  men 
were  by  degrees  reabsorbed  into  the  general  body  of 
the  Whig  or  Liberal  party,  the  latter  at  the  same  time 
moving  with  the  times ;  and  some  of  those  changes,  in 
particular  vote  by  ballot,  were  ultimately  obtained  with 
no  great  friction. 

It  must  nevertheless  be  remembered  that  in  the  history 
of  most  States  a  crisis  is  apt  to  arrive  when  elasticity 
becomes  a  danger,  in  that  it  tempts  people  to  abuse  the 
facility  for  change.  There  is  no  better  sign  of  strength 
in  a  man's  physical  constitution  than  his  being  able  to 
make  some  short,  sudden,  and  violent  effort  without 
suffering  afterwards  from  doing  so ;  and  there  is  nothing 
of  which  the  happy  possessor  of  such  strength  is  more 
proud.  But  those  men  who  have  reached  middle  life  are 
aware  that  the  temptation  to  strain  one's  strength  in  this 
exultant  spirit  is  perilous.  Repeated  impunity  is  apt  to 
encourage  a  man  to  go  on  trying  experiments  when  the 
conditions  are  perhaps  less  favourable,  or  when  the  re- 


160  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

serve  of  force  is  less  abundant  than  it  was  in  youth.  The 
story  goes  that  the  famous  Milo  of  Croton,  passing  alone 
through  a  forest,  saw  an  oak  into  which  woodmen  who 
were  preparing  to  fell  it  had  driven  wedges.  Pulling  out 
the  wedges,  he  tried  to  rive  it  asunder.  But  he  had  no 
longer  the  fullness  of  his  youthful  strength.  The  re- 
turning tree  caught  him  by  the  hands  and  held  him  fast 
till  he  died.  In  our  own  days  Captain  Webb,  stimu- 
lated by  his  feat  in  swimming  across  the  English  Channel, 
sought  still  bolder  exploits,  and  perished  in  the  Whirl- 
pool Rapid  below  Niagara  Falls.  So  the  Romans,  hav- 
ing many  a  time  given  exceptional  powers  for  special 
occasions  to  their  magistrates,  found  at  last  that  they 
had  created  precedents  which  enabled  the  old  free  Con- 
stitution to  be  in  substance  overthrown.  Sulla  became 
a  dictator  of  a  new  kind.  After  a  while  he  resigned  his 
power,  but  the  example  showed  that  monarchy  was  not 
far  off.  Julius  Caesar  also  received  exceptional  authority, 
and  used  it  to  form  an  army  which  extinguished  the 
Republic.  The  dictatorship  he  had  held  passed  under 
other  forms  into  permanent  absolutism,  and  what  was 
practically  a  revolution  was  ultimately  carried  through 
with  a  certain  deference  to  the  old  constitutional  forms. 
In  England,  Parliament,  during  the  sixteenth  century, 
once  or  twice  gave  powers  to  the  Crown  which  brought 
the  Constitution  into  danger.  In  the  seventeenth  cen- 
tury the  monarchy  was  abolished,  and  a  Protectorate  set 
up  by  revolutionary  methods.  This  was  the  result  of  a 
war  which  had  destroyed  a  vital  part  of  the  old  machine, 
much  to  the  regret  of  most  of  those  who  had  in  the  first 
instance  taken  up  arms.  We  have  never  since  that  date 
(except  under  King  James  the  Second)  seen  the  Consti- 
tution in  any  real  danger. 

It  is,  however,  often  suggested  that  the  enormous 
power  possessed  by  Parliament  might  be  used  to  upset 
fundamental  institutions  with  reckless  haste,  and  that 
it  might  therefore  be  prudent  to  impose  restrictions  on 
parliamentary  action.  And  those  who  note  the  way  in 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  151 

which  Parliament  bends  and  staggers  under  the  increas- 
ing burden  of  work  laid  on  it,  coupled  with  the  inade- 
quacy of  its  rules  to  secure  the  prompt  dispatch  of  busi- 
ness l,  have  frequently  predicted  that  the  House  of  Com- 
mons may  one  day  deliver  itself  into  the  hands  of  the 
Cabinet,  the  power  of  party  organization  having  grown 
so  strong  that  the  head  of  each  Cabinet  will  be  deemed 
a  sort  of  dictator,  drawing  his  authority,  nominally  of 
'course,  from  the  House  of  Commons,  but  really  from 
a  so-called  direct  '  mandate  '  of  the  electors  2.  Others 
draw  a  yet  more  horrible  picture  of  a  party  machine, 
which  they  call  the  Caucus,  dictating  a  policy  to  the  elec- 
tors on  the  one  hand,  and  to  the  Cabinet  on  the  other, 
itself  reigning  in  the  spirit  of  a  tyrant,  but  under  the 
forms  of  the  Constitution.  If  the  British  Constitution, 
as  we  have  hitherto  known  it,  should  perish,  there  is  little 
reason  to  fear  it  will  do  so  in  this  eminently  ignoble 
fashion  8. 

When  Flexible  Constitutions  come  to  an  end,  they  do 
so  in  one  of  two  ways.  Sometimes  they  pass  into  an 
autocracy,  either  dying  a  violent  death  by  revolution, 
or  expiring  in  a  more  natural  manner  through  the  ex- 
tension and  development,  under  legal  forms,  of  one  of 
their  organs,  to  a  point  at  which  it  practically  super- 
sedes and  replaces  the  other  organs.  Sometimes,  on 
the  other  hand,  they  pa-ss  into  Rigid'  Constitutions. 
The  causes  which  induce  this  latter  change  belong, 

1  This  was  written  in  1884.    Since  that  year  sweeping  changes  have  been  made 
in  the  procedure  of  the  House  of  Commons  which  have  greatly  curtailed  the  rights 
and  opportunities  of  private  members  while  increasing  the  powers  of  the  Ministry 
of  the  day.     They  have  not,  however,  made  that  House  able  to  discharge  all  or 
nearly  all  the  work  that  falls  on  it ;  and  it  is  becoming  (under  the  new  rules)  less 
and  less  careful  in  the  exercise  of  its  powers  of  voting  money. 

2  This  apprehension  was  often  expressed  between  1880  and  1885.    .Nothing  has 
occurred  since  to  justify  it  so  far  as  the  dictatorship  of  any  single  person  is  con- 
cerned ;  and  it  may  have  in  great  part  arisen  from  the  fact  that  from  1867  to  1885 
the  headships  of  both  the  two  great  parties  had  been  vested  in  exceptionally  vigo- 
rous and  influential  leaders.    There  can  however  be  no  doubt  that  the  power  of 
the  Cabinet  as  against  the  House  of  Commons  has  grown  steadily  and  rapidly : 
and  it  appears  (1901)  to  be  still  growing. 

3  Of  this  supposed  danger  also  much  less  is  heard  now  than  in  1884.  The  thing 
that  was  then  called  the  '  Birmingham  Caucus '  has  ceased  to  be  used  to  terrify 
the  timid. 


152  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

however,  to  the  examination  of  that  second  type  of  Con- 
stitution ;  and  will  be  considered  when  we  have  surveyed 
some  further  features  characteristic  of  the  Flexible  type. 

VI.    ARISTOCRACIES  AND  FLEXIBLE  CONSTITUTIONS. 

Flexible  Constitutions  have  a  natural  affinity  for  an 
aristocratic  structure  of  government.  I  do  not  mean 
merely  that  they  spring  up  at  times  when  power  is  in 
the  hands  of  the  well-born  or  rich,  for  the  stage  of  society 
in  which  constitutions,  properly  so  called,  begin  to  exist, 
is  nearly  always  oligarchic,  even  if  there  be  a  monarch  at 
the  head  of  it.  But  there  is  a  sort  of  natural  attraction 
between  an  aristocracy  and  an  undefined  and  elastic 
form  of  government,  as  there  has  begun  to  be,  in  most 
modern  countries,  a  natural  repulsion  between  such  a 
form  and  a  pure  democracy.  It  needs  a  good  deal  of 
knowledge,  skill  and  experience  to  work  a  Flexible  Con- 
stitution safely,  and  it  is  only  in  the  educated  classes  that 
these  qualities  can  be  looked  for.  The  masses  of  a 
modern  nation  seldom  appreciate  the  worth  of  ancient 
usages  and  forms,  or  the  methods  of  applying  precedents. 
In  small  democratic  communities,  such  as  are  the  Forest 
Cantons  of  Switzerland,  this  attachment  to  custom  may 
be  found,  because  there  traditions  have  passed  into  the 
life  of  the  people,  and  the  maintenance  of  ancient  forms 
has  become  a  matter  of  local  pride.  But  in  a  large  nation 
it  is  only  educated  men  who  can  comprehend  the  ar- 
rangements of  a  complicated  system  with  a  long  history, 
who  can  follow  its  working,  and  themselves  apply  its  prin- 
ciples to  practice.  The  uninstructed  like  something  plain, 
simple  and  direct.  The  arcana  imperil  inspire  suspicion, 
a  suspicion  seldom  groundless,  because  the  initiated  are 
apt  to  turn  a  knowledge  of  secrets  to  selfish  purposes. 
Now  a  Common  Law  Constitution  with  its  long  series 
of  precedents,  some  half  obsolete,  some  of  doubtful  inter- 
pretation, is  full  of  arcana.  Even  to-day,  though  the  pro- 
cess of  clarification  and  simplification  has  gone  on  fast 


FLEXIBLE  AM)    If  I  (111)    <'()\XT1TUTION8  153 

since  1832,  dark  places  are  still  left  in  the  British  Consti- 
tution. 

There  is,  however,  a  further  reason  why  Common  Law 
Constitutions  accord  better  with  aristocratic  than  with 
democratic  sentiment.  They  allow  a  comparatively 
wide  discretion  to  the  chief  officials  of  State,  such  as 
the  higher  magistrates  at  Rome  and  the  Ministers  of  the 
Crown  in  England.  The  functions  of  these  officials  are 
not  very  strictly  defined,  because  legal  enactments, 
though  they  limit  power  in  certain  directions  (far  more 
rigidly  now  in  England  than  was  the  case  at  Rome),  do 
not  draw  a  completely  closed  circle  round  it,  but  leave 
certain  gaps,  through  which  tradition  and  precedent 
permit  it,  so  to  speak,  to  shoot  out  and  play  freely. 
Aristocracies  prize  this  latitude.  They  prize  it  because 
it  is  mainly  to  prominent  members  of  their  class  that 
offices  fall,  and  these  persons  are  then  able  to  act  with 
freedom,  to  assert  their  individual  wills,  to  carry  out  their 
views  unchecked  by  the  dread  of  transgressing  a  statute. 
On  the  other  hand,  the  less  conspicuous  members  of 
the  upper  class  have  at  any  rate  little  reason  to  fear 
harm  from  the  wide  authority  of  the  -officials,  because 
their  social  position,  and  the  influence  of  their  family 
connexions,  protect  them  from  arbitrary  treatment. 
The  masses  of  the  people  have  neither  advantage.  Very 
few  of  them  can  hope  to  enjoy  power.  Any  one  of  them 
may  suffer  from  an  exercise  of  it,  which,  because  not 
positively  illegal,  gives  him  no  claim  for  redress.  They 
have,  therefore,  everything  to  gain  and  nothing  to  lose 
if  they  can  restrict  it  by  those  definite  and  fixed  limita- 
tions which  are  congenial  to  Rigid  rather  than  to  Flex- 
ible Constitutions.  And  in  the  history  of  most  peoples 
a  time  arrives  when,  the  love  of  equality  being  reinforced 
by  the  distrust  of  authority,  there  is  a  movement  to  cut 
down  the  powers  of  the  rulers  to  the  lowest  point  com- 
patible with  the  safety  of  the  State.  The  extent  to  which 
this  process  has  gone  is  in  any  nation  a  fair  test  of  the 
gains  made  by  the  democratic  principle  upon  the  aristo- 


154  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

cratic.  But  in  this  respect  the  course  things  have  taken 
in  England  has  been  very  unlike  that  which  they  took  at 
Rome.  One  of  the  first  events  which  the  authentic  his- 
tory of  Rome  records  is  the  effort  of  the  plebeians  to 
secure  a  limitation  of  the  power  of  the  Consuls  by  having 
statutes  passed  to  define  it.  The  effort  failed.  It  is  cha- 
racteristic of  the  Romans  that  it  should  have  failed.  Sta- 
tutes, known  afterwards  as  the  Laws  of  the  Twelve  Ta- 
bles, were  enacted,  statutes  which  doubtless  on  the  whole 
improved  the  position  of  the  plebeians.  But  the  powers 
of  the  Consuls  remained  wide  and  legally  indefinite  down 
till  the  time  when  life  went  out  of  them  under  the  shadow 
of  an  autocrat  who  ruled  for  life.  Limited  of  course 
these  powers  had  to  be  as  time  went  on  and  the  popular 
element  in  the  constitution  was  developed,  but  the  limi- 
tations were  imposed,  not  by  narrowing  the  powers 
themselves,  but  by  the  introduction  of  new  factors.  The 
two  Consuls,  being  chosen  from  a  circle  less  narrow 
than  in  the  old  days,  were  more  frequently  at  variance 
with  one  another.  Other  officials  were  set  up  over 
against  the  Consuls,  who  could  (if  they  pleased)  interfere 
to  restrain  the  Consuls.  And  thirdly,  the  permanent 
non-representative  Council  of  Elders  (the  Senate),  com- 
posed mainly,  of  ex-officials,  increased  its  influence,  and 
could  generally  hold  the  magistrates  in  check.  Things 
went  very  differently  in  England.  There  the  prerogative 
of  the  Crown  was  the  force  of  which  the  nobles  as  well  as 
the  commons  stood  in  dread,  and  they  united  in  the  effort 
to  restrict  it  down  till  a  time  when  the  commons  were 
strong  enough  to  dispense  with  the  help  of  more  than  a 
section  of  the  landowning  magnates.  In  steadily  reduc- 
ing the.  prerogative  of  the  Crown,  in  lopping  off  some 
parts  of  it  and  strictly  defining  others,  they  restricted  the 
powers  of  the  Crown  and  its  Ministers,  until  at  last  they 
had  so  firmly  established  the  right  of  the  representative 
assembly  to  prescribe  to  the  Crown  what  persons  it 
should  employ  as  Ministers  that  the  old  motive  for  limit- 
ing the  prerogative  vanished.  Those  who  had  been 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  155 

feared  as  masters  were  now  trusted  as  servants.  The 
people  no  longer  disliked  what  was  left  of  the  royal  pre- 
rogative, because  their  representatives  could  control  the 
persons  who  wielded  it,  and  the  members  of  the  ruling 
assembly  began  to  feel  that  it  was  in  the  public  interest, 
and  not  against  their  own  personal  interest,  to  maintain 
the  powers  of  Ministers,  because  many  things  could  be 
done  more  easily  and  more  promptly  through  these 
powers  than  by  the  passing  of  statutes  for  dealing  with 
each  matter  in  detail.  There  may  even  be  a  danger,  in  this 
new  condition  of  things,  that  the  royal  prerogative  will 
be  used  too  freely,  because  that  prerogative  now  means 
the  will  of  the  leaders  of  the  parliamentary  majority, 
whose  action  might  at  a  moment  of  excitement  be  ap- 
plauded and  sustained  by  their  followers  even  should  it 
transcend  the  limits  fixed  by  constitutional  usage. 

It  has  been  already  remarked  that  the  system  of  checks 
in  the  Roman  Constitution  differed  essentially  from  that 
employed  in  the  English.  Every  constitution  must  of 
course  have  a  system  of  checks,  else  it  will  quickly  perish, 
or,  to  vary  the  metaphor,  it  must  so  dispose  the  ballast  as 
to  enable  the  vessel  to  recover  her  equilibrium  after  a 
violent  oscillation.  At  Rome  the  checks  consisted  in  the 
coexistence  of  various  magistrates  who  could  arrest  one 
another's  action,  and  in  a  permanent  Senate  with  a  large 
though  somewhat  ill-defined  control,  while  the  popular 
assembly,  in  theory  omnipotent,  was  in  fact  restrained 
by  a  number  of  curious  features  in  its  procedure  which 
made  it  much  less  effective  than  was  the  primary  popular 
assembly  in  most  of  the  Greek  republics.  It  could  act 
only  when  convoked  by  a  magistrate,  could  have  its 
action  stopped  by  another  magistrate,  and  was  fre- 
quently overreached  or  circumvented  by  the  Senate.  In 
England,  on  the  other  hand,  the  Crown,  which  before 
the  conflicts  of  the  seventeenth  century  had  been  the 
predominant  power  which  needed  to  be  checked,  and 
which  frequently  was  checked,  by  Parliament,  becomes 
after  that  time  capable  only  of  occasionally  baffling  (and 


156  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

that  less  and  less  as  time  went  on)  the  now  predominant 
Parliament,  while  the  restraint  on  hasty  or  violent  action 
by  Parliament  was  found,  partly  in  the  division  of  Par- 
liament into  two  Houses,  and  partly,  especially  after 
the  Upper  House  had  begun  to  lose  moral  weight,  and 
had  passed  more  and  more  under  the  control  of  one  party 
in  the  State,  in  the  fact  that  an  assembly  of  representa- 
tives, nearly  all  of  whom  belonged  to  the  wealthier  and 
so-called  upper  classes,  was  pervaded  by  a  conservative 
temper.  A  representative  body,  the  members  of  which 
are  mostly  satisfied  with  the  world  as  it  is,  and  who  are 
sufficiently  instructed  to  respect  the  traditions  of  admi- 
nistration, is,  except  where  a  question  arises  which  stirs 
class  passions,  less  prone  to  ill-considered  action  than 
is  an  assembly  of  all  the  citizens,  such  as  was  the  Ecclesia 
of  Athens  or  Syracuse,  where  the  large  majority  were 
humble  folk,  and  where  the  sympathy  of  numbers  made 
the  ascendency  of  emotion  over  reason  doubly  danger- 
ous. Thus,  as  compared  with  the  democracies  of  the 
city-states  of  antiquity,  the  representative  character  of 
the  assemblies  of  modern  Europe  has  been  a  moderating 
factor.  But  these  assemblies  are  now  changing  their 
character,  as  the  countries  in  which  they  exist  have 
changed.  The  progress  of  science  has,  through  the 
agency  of  railways  and  telegraphs,  of  generally  diffused 
education,  and  of  cheap  newspapers,  so  brought  the  in- 
habitants of  large  countries  into  close  and  constant  rela- 
tions with  one  another  and  with  their  representatives, 
that  the  conditions  of  a  small  city-state  are  being  repro- 
duced. A  man  living  at  Kirkwall  knows  what  happened 
last  night  in  London,  eight  hundred  miles  away,  sooner 
and  more  fully  than  a  man  living  in  Marathon  (distant 
eight  hours'  walking)  knew  what  had  happened  the  day 
before  in  Athens.  The  same  news  reaches  all  the  citizens 
at  the  same  time,  the  same  emotion  affects  all  simultane- 
ously, and  is  intensified  by  reverberation  through  the 
press.  The  nation  is,  so  to  speak,  compressed  into  a  much 
smaller  space  than  it  filled  three  centuries  ago,  and  has 


FLEXIBLE  AM)   If  Id  ID  CONSTITUTIONS  157 

become  much  more  like  a  primary  assembly  than  it  was 
then.  If  concurrently  with  this  change  there  should 
come,  as  some  presage,  a  closer  and  more  constant  con- 
trol of  the  members  of  the  representative  assembly  by 
their  constituents,  the  representatives  becoming  rather 
delegates  acting  under  instructions  than  men  chosen  to 
speak  and  vote  because  they  are  deemed  trusty  and 
intelligent,  much  of  the  moderative  value  which  the  re- 
presentative system  has  possessed  will  disappear. 

It  need  not  be  thought  that  in  England  at  least  there 
is  any  immediate  risk  of  evils  to  be  expected  from  the 
change  which  has  been  noted.  Representatives  have  not 
yet  become  delegates,  and  if  they  do,  it  will  be  rather 
their  own  fault  than  that  of  the  electors,  for  the  electors 
respect  courage  and  value  independence.  In  England 
the  power  of  party  organizations  over  constituencies  and 
members,  if  it  grows,  grows  slowly.  It  is,  in  fact,  not  so 
much  these  organizations  as  small  sections  of  opinion 
or  organized  '  interests/  seeking  some  advantage  for 
themselves,  that  try  to  terrorize  candidates.  There  is 
still  a  valuable  check  on  possible  recklessness  on  the  part 
of  Parliament  in  the  fact  that  it  is  (unlike  some  popular 
assemblies)  guided  by  responsible  Ministers,  who  have 
hitherto  seldom  been  mere  demagogues,  and  who  have 
experience  behind  them,  prospects  of  future  dignity  be- 
fore them,  and  the  opinion  of  their  own  class  around 
them.  All  that  I  wish  to  point  out  is  that  a  change  has 
passed  on  the  conditions  under  which  representative 
assemblies  act,  which  in  making  them  more  swiftly  re- 
sponsive to  public  sentiment,  increases  some  of  the  risks 
always  incident  to  popular  government.  History  has  not 
spoken  her  last  word  about  Flexible  Constitutions. 
Rather  may  she  be  opening  a  new  stage  in  their  develop- 
ment. 


158  FLEXIBLE  AND   RIGID   CONSTITUTIONS 


VII.    THE  INFLUENCE  OF  CONSTITUTIONS  ON  THE  MIND 
OF  A  NATION. 

We  have  been  considering  what  are  the  conditions 
present  in  a  nation  which  make  it  prefer  a  particular 
kind  of  constitution.  Now  let  us  approach  the  converse 
question,  and  inquire  what  will  be  the  influence  on  the 
political  ideas  and  habits  of  a  nation  of  these  Constitu- 
tions of  the  Common  Law,  or  Flexible  type,  and  what 
are  the  features  of  national  character  which  will  enable 
such  constitutions  to  live  on  and  prosper. 

Forms  of  government  are  causes  as  well  as  effects, 
and  give  an  intellectual  and  moral  training  to  the  peoples 
that  live  under  them,  as  the  character  of  a  parent  affects 
the  children  of  the  household.  Now  the  Common  Law 
Constitution,  with  its  complexity,  its  delicately  adjusted 
and  balanced  machinery,  its  inconsistencies,  its  nuances — 
one  is  driven  to  French  because  there  is  no  English  word 
to  express  the  tendency  of  a  tendency — its  abundance  of 
unsettled  points,  in  which  a  refined  sense  can  perceive 
what  the  decision  ought  in  each  case  to  be  without  being 
able  to  lay  down  a  plain  and  positive  rule — such  a  con- 
stitution must  undoubtedly  polish  and  mature  in  the 
governing  class  a  sort  of  tact  and  judgement,  a  subtlety 
of  discrimination  and  a  skill  in  applying  old  principles 
to  new  combinations  of  facts,  which  make  it  safe  for  a 
people  to  leave  wide  powers  to  their  magistrates  or  their 
governing  assembly.  A  sense  grows  up  among  those 
who  have  to  work  the  constitution  as  to  what  is  and  is 
not  permissible  under  it,  and  that  which  cannot  be  ex- 
pressed in  the  stiff  phrases  of  a  code  is  preserved  in  the 
records  of  precedents  and  shines  through  the  traditions 
which  form  the  minds  of  the  rulers.  This  kind  of  consti- 
tution lives  by  what  is  called  its  Spirit.  '  The  letter  kill- 
eth,  but  the  spirit  giveth  life/ 

Evidently,  however,  it  is  only  among  certain  nations 
with  certain  gifts  that  such  a  constitution  will  come  to 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  159 

maturity  and  become  a  subject  for  science  as  well  as 
a  work  of  art.  Three  things  seem  needful.  One  is  legal- 
mindedness,  a  liking  and  a  talent  for  law.  Another  is  a 
conservative  temper,  by  which  I  mean  the  caution  which 
declines  to  make  changes  save  when  a  proved  need  for 
change  arises,  so  that  changes  are  made  not  suddenly, 
but  slowly  and  bit  by  bit.  The  third  is  that  intellectual 
freshness  and  activity  which  refuses  to  be  petrified  by 
respect  for  law  or  by  aversion  to  change.  It  is  only 
where  these  three  qualities  are  fitly  mixed  or  evenly 
balanced  that  either  a  great  system  of  law  or  a  finely 
tempered  and  durable  constitution  can  grow  up.  Many 
otherwise  gifted  peoples  have,  like  the  Athenians  in  an- 
cient and,  longo  intcrvallo,  the  Spaniards  in  modern  times, 
wanted  one  or  other  of  these  qualities,  and  have  there- 
fore failed  to  enrich  the  world  by  law  or  by  consti- 
tutions. Perhaps  it  was  partly  owing  to  their  possessing 
other  gifts,  scarcely  compatible  with  these,  that  the 
Athenians  did  fail. 

But  although,  when  a  nation  has  reached  the  point  at 
which  its  law  begins  to  be  scientific,  the  law  and  the 
constitution  become  teachers,  it  must  be  remembered 
that  the  training  they  give  is  mainly  given  to  the  classes 
which  practise  law  and  administer  the  State.  For 
though  a  nation  as  a  whole  may  come  to  understand  and 
appreciate  in  outline  its  constitution,  and  may  attain  to 
a  fairly  correct  notion  of  the  functions  of  each  organ  of 
government,  only  a  comparatively  small  section  com- 
prehends the  system  well  enough  to  work  it  or  to  criti- 
cize its  working.  For  such  comprehension  there  is 
needed  not  only  some  knowledge  of  history  but  also 
close  and  continuous  observation  of  the  machinery  in  mo- 
tion, and  either  participation  in  the  business  of  govern- 
ing or  association  with  those  who  are  carrying  on  that 
business.  The  mass  of  the  nation  cannot  be  expected  to 
possess  this  familiarity.  They  are  like  the  passengers 
on  board  an  ocean  steamer,  who  hear  the  clank  of  the 
engine  and  watch  the  stroke  of  the  piston  and  admire  the 


160  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

revolution  of  the  larger  wheels,  and  know  that  steam  acts 
by  expansion,  but  do  not  know  how  the  less  conspicuous 
but  not  less  essential  parts  of  the  machinery  play  into 
the  other  parts,  and  have  little  notion  of  the  use  of  fly- 
wheels and  connecting-rods  and  regulators.  They  can 
see  in  what  direction  the  vessel  is  moving,  and  can  con- 
jecture the  rate  of  speed,  but  they  must  depend  on  the 
engineers  for  the  management  of  boilers  and  engines,  as 
they  do  on  the  captain  for  the  direction  of  the  ship's 
course.  In  the  earlier  stages  of  national  life,  the  masses 
are  usually  as  well  content  to  leave  governing  to  a  small 
upper  class  as  passengers  are  to  trust  the  captain  and 
the  engineers.  But  when  the  masses  obtain,  and  feel 
that  they  have  obtained,  the  sovereignty  of  the  country, 
this  acquiescence  can  no  longer  be  counted  on.  Men 
without  the  requisite  knowledge  or  training,  men  who, 
to  revert  to  our  illustration,  know  no  more  than  that 
steam  acts  by  expansion  and  that  a  motion  in  straight 
lines  has  to  be  turned  into  a  rotary  one,  men  who  are  not 
even  aware  of  the  need  for  knowledge  and  training,  men 
with  little  respect  for  precedents,  and  little  capacity  for 
understanding  their  bearing,  may  take  command  of  en- 
gines and  ship:  and  the  representative  assembly  may 
be  filled  by  those  who  have  no  sense  of  the  dangers  to 
which  an  abuse  of  the  vast  powers  of  the  assembly  may 
lead.  If  such  a  change  arrives,  it  imposes  a  severe  strain 
on  the  constitution ;  and  that  elasticity  which  has  been  its 
merit  may  prove  its  danger. 

It  may  accordingly  be  said  that  one  of  three  condi- 
tions is  generally  necessary  for  the  salvation  of  a  Flex- 
ible Constitution.  Either  (i)  the  supremacy  must  re- 
main in  the  hands  of  a  politically  educated  and  politically 
upright  minority,  or  (2)  the  bulk  of  the  people  must  be 
continuously  and  not  fitfully  interested  in  and  familiar 
with  politics,  or  (3)  the  bulk  of  the  people,  though  legally 
supreme,  must  remain  content,  while  prescribing  certain 
general  principles,  to  let  the  trained  minority  manage  the 
details  of  the  business  of  governing.  Of  these  conditions 


FLEXIBLE  AND  ItWll)   rn.\  sriTUTWNS  161 

the  first  has  disappeared  from  nearly  all  civilized  coun- 
tries. The  second  has  always  been  rare,  and  in  large 
industrial  countries  is  at  present  unattainable.  The  best 
chance  of  success  is  therefore  to  be  found  in  the  presence 
of  the  third;  but  it  needs  to  be  accompanied  by  a  tone 
and  taste  and  sense  of  public  honour  among  the  people 
which  will  recoil  from  the  mere  demagogue. 

Both  the  influence  of  its  constitution  upon  a  nation 
and  the  need  of  certain  qualities  in  order  to  work  a 
Flexible  Constitution  are  well  illustrated  in  the  history 
of  the  Roman  commonwealth.  Of  all  famous  constitu- 
tions it  was  the  most  flexible.  It  lived  long  and  over- 
came many  perils  because  it  grew  up  among  a  people 
who  possessed  in  an  eminent  degree  the  three  qualities 
of  legalmindedness,  of  conservatism,  and  of  keen  practi- 
cal intelligence.  It  trained  the  national  mind  to  a  respect 
for  order  and  legality,  and  had  doubtless  much  to  do  with 
the  forming  of  that  constructive  genius  which  created 
the  whole  system  of  Roman  private  law.  It  fell  at  last 
because  the  mass  of  the  citizens  became  unfit  to  dis- 
charge their  function  in  the  scheme.  They  did  not,  it  is 
true,  press  into  the  inner  circle  of  the  governing  class. 
The  success  first  of  the  well-born  and  then  of  the  rich  in 
keeping  the  offices  in  their  own  hands  all  through  is  one 
of  the  most  remarkable  features  of  Roman  history.  But 
they  were  corrupt  and  reckless  in  the  bestowal  of  power, 
and  had  really  ceased  to  care  for  the  freedom  and  welfare 
of  the  State.  The  ruling  classes,  on  the  other  hand,  were 
tempted  by  the  demoralization  of  the  masses  to  be  their 
corrupters,  and  lost  their  old  respect  for  legality.  Even 
a  conscientious  philosopher  like  Cicero  did  not  scruple 
to  put  prisoners  to  death  without  trial,  and  to  justify 
himself  by  citing  an  act  of  lawless  violence  done  four 
centuries  before.  The  leading  Romans  of  that  day  were 
as  fit  as  ever  to  work  the  system,  so  far  as  skill  and 
knowledge  went,  but  they  had  not  the  old  regard  for  its 
principles, nor  the  old  sense  of  public  duty ;  and  the  prizes 
which  office  offered  now  that  Rome  was  mistress  of  the 


162  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

world  were  too  huge  for  average  virtue  to  resist.  The 
moral  forces  which  had  enabled  the  Roman  Constitution 
to  work  in  spite  of  its  extraordinary  complexity,  and  to 
live,  in  spite  of  the  risks  to  which  its  own  nature  exposed 
it,  were  now  fatally  enfeebled.  These  abuses  of  power 
on  the  one  hand,  and  on  the  other  hand  the  deadlocks 
which  the  system  of  checks  caused,  grew  more  frequent 
and  serious.  Each  successive  wrench  which  the  machine 
received  became  more  violent,  because  neither  faction 
had  patriotism  enough  to  try  to  ease  them  off,  and  so 
break  the  force  of  the  shock.  From  the  beginning  of 
the  Republic  the  chief  danger  had  lain  in  the  immense 
powers  vested  in  the  magistrates.  These  powers  had 
been  necessary,  because  the  State  was  constantly  ex- 
posed to  attacks  from  without;  and  nothing  but  the 
sense  of  devotion  to  the  interests  of  the  State  had  con- 
trolled the  party  spirit  which  rages  more  fiercely  within 
the  walls  of  a  city  than  it  does  in  a  large  and  scattered 
community.  Now  that  Rome  had  vast  dominions  to 
rule,  and  now  that  her  frontiers  extended  to  the  very 
verge  of  civilization,  involving  her  in  long  wars  with 
great  monarchies  or  groups  of  tribes  on  those  frontiers, 
large  powers  had  to  be  entrusted  to  military  chiefs,  and 
entrusted  for  long  periods.  Thus  the  Republican  con- 
stitution fell  through  the  very  faults  which  had  always 
lain  deep  in  its  bosom,  though  an  over-mastering  patriot- 
ism had  in  earlier  days  kept  them  harmless. 

It  is  never  easy,  in  studying  the  history  of  an  institu- 
tion, to  determine  how  much  of  its  success  or  its  failure 
is  due  to  its  own  character,  how  much  to  the  conditions, 
external  and  domestic,  in  the  midst  of  which  it  has  to 
work.  The  fortunes  of  the  Roman  Constitution  would 
doubtless  have  been  different  had  Rome  been  less 
pressed  by  foreign  enemies  in  her  earlier  days,  or  had 
she  been  less  of  a  conquering  power  in  her  later.  So 
too  it  is  hard  to  compare  States  so  different  as  Rome — 
whose  Constitution  was  always  that  of  a  City,  and  failed 
to  widen  itself  so  as  to  become  a  Constitution  for  Italy — 


FLEXIBLE  AA'D  RIGID   CONSTITUTIONS  163 

and  England,  whose  Constitution  has  always  since  the 
days  of  Ecghbert  and  Alfred  been  that  of  a  large  and 
originally  a  rural  and  scattered  community.  If,  however, 
the  comparison  is  attempted,  we  may  observe  that  Eng- 
land never,  after  the  fourteenth  century,  recognized 
such  vast  powers  in  the  Crown  (whether  in  the  Crown 
personally  or  as  exercised  by  its  Ministers)  as  Rome 
granted  to  her  magistrates.  In  the  sphere  of  public 
law  England  has  applied  more  successfully  than  Rome 
did  the  conception  of  the  inviolability  of  the  rights  of 
the  citizen  as  against  the  organs  of  the  State,  although 
that  conception  is  itself  Roman.  With  all  their  legal 
genius  the  Romans  were  too  much  penetrated  by  the 
idea  of  the  necessary  amplitude  of  State  power  to  fix 
just  limits  to  the  action  of  the  Executive.  When  it  was 
necessary  to  provide  for  checking  a  magistrate,  they  set 
up  another  magistrate  to  do  it,  instead  of  limiting  magis- 
terial powers  by  statute.  Nor  did  they  ever  succeed  as 
the  English  have  done  in  disengaging  the  judicial  from 
the  executive  department  of  government.  In  both  these 
respects  part  of  the  merits  of  the  English  Constitution 
may  be  ascribed  to  Norman  feudalism,  whose  precise 
definition  of  the  respective  rights  of  lord  and  vassal — all 
the  lords  but  one  being  also  vassals,  and  the  greater 
vassals  being  also  lords — helped  to  form  and  imprint  deep 
the  idea  that  powers,  however  strong  within  a  definite 
sphere,  may  be  strictly  confined  to  that  sphere,  and  that 
the  limits  of  the  sphere  are  fit  matter  for  judicial  deter- 
mination. Perhaps  the  existence  in  the  clergy  of  a  large 
class  of  men  enjoying  specific  immunities  the  exact 
range  of  which  had  to  be  settled,  and,  where  possible, 
judicially  settled,  may  have  also  contributed  to  train  this 
habit  of  mind.  The  extent  to  which  England,  favoured 
no  doubt  by  her  insular  position,  was  able  to  secure 
domestic  freedom  while  leaving  a  large  discretionary 
authority  to  the  Crown,  is  usually  credited  to  the  rise 
of  the  House  of  Commons  and  the  vigilance  of  its  con- 
trol. But  much  is  also  to  be  ascribed  to  that  precise 


164  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

definition  of  the  rights  of  the  individual  which  has  made 
life  and  property  secure  from  injury  on  the  part  of  the 
State,  to  the  habit  of  holding  officials  liable  for  acts  done 
in  excess  of  their  functions,  and  to  that  ultimate  detach- 
ment of  the  judiciary  from  the  influence  of  the  Crown 
which  has  enabled  the  individual  to  secure  by  legal  pro- 
cess the  enforcement  of  his  rights.  These  principles  have 
sunk  deep  into  the  mind  of  the  nation,  and  have  been  of 
the  utmost  service  in  forming  the  habits  of  thought  and 
action  by  which  free  constitutions  have  to  be  worked. 
They  are  just  as  strong  as  if  they  were  embodied  in  a 
Rigid  Constitution,  instead  of  being  legally  at  the  mercy 
of  Parliament.  But  that  is  because  they  have  centuries 
of  tradition  behind  them,  and  because  the  English  are 
a  people  who  respect  tradition  and  have  been  trained  to 
appreciate  the  value  of  the  principles  which  their  ances- 
tors established. 

VIII.    CAPACITY   OF   CONSTITUTIONS   FOR    TERRITORIAL 

EXPANSION. 

One  point  more  remains  to  be  mentioned  before  we 
quit  constitutions  of  the  Flexible  type,  viz.  their  suit- 
ability to  a  State  which  is  expanding  its  territory  and  tak- 
ing in  other  communities  whether  by  conquest  or  by 
treaty. 

Such  constitutions  seem  especially  well  suited  to  coun- 
tries which  are  passing  through  periods  of  change, 
whether  internal  or  external.  When  new  classes  of  the 
population  have  to  be  admitted  to  share  in  political 
power,  or  when  the  inhabitants  of  newly-acquired  terri- 
tories have  to  be  taken  in  as  citizens,  this  is  most  quickly 
and  easily  effected  by  the  action  of  the  ordinary  legis- 
lature. Both  Rome  and  England  availed  themselves  of 
this  flexibility  in  the  earlier  stages  of  their  growth. 
England,  itself  created  as  a  State  by  the  expansion  of 
the  West  Saxons,  enlarged  herself  to  include  Wales 
with  no  disturbance  of  her  former  Constitution,  and 


/'/./;  A //;/,/;  .i\/>  it  us  ID  COXHTITUTW\*  165 

similarly  fused  herself  with  Scotland  in  1707  and  with 
Ireland  in  1800,  in  both  cases  altering  the  Constitution 
of  the  enlarged  State  no  further  than  by  the  admission 
of  additional  members  to  the  two  Houses  of  Parliament, 
and  by  the  suppression  of  certain  offices  in  the  smaller 
kingdoms.  The  ease  with  which  the  earlier  expansions 
were  effected  may  be  attributed  to  the  fact  that  in 
mediaeval  times  the  prominence  of  the  king  made  the 
submission  of  any  tribe  or  territory  to  him  carry  with 
it  the  incorporation  of  that  tribe  or  territory  into  his  for- 
mer dominions.  The  popular  assembly  of  a  community, 
such  as  were  the  South  Saxons,  for  instance,  sank  into 
a  secondary  place  as  soon  as  the  king  was  head  of  the 
South  Saxons  as  well  as  of  the  West  Saxons,  for  the 
council  of  the  united  people  which  he  summoned  and 
over  which  he  presided  became  the  national  assembly 
for  all  his  subjects.  In  later  times,  though  Scotland  and 
Ireland  had  their  separate  Parliaments,  these  could  be 
readily  united  with  that  of  England,  because  in  all  three 
countries  the  popular  House  was  representative.  Here, 
however,  England  has  stopped.  The  vast  dominions 
which  she  possesses  beyond  the  oceans,  while  legally 
subject  to  her  Crown  and  Parliament,  have  not  been 
brought  into  the  constitutional  scheme  of  the  mother- 
land. Indeed  they  could  hardly  be  brought  in  without 
a  reconstruction  of  the  present  frame  of  government, 
which  would  probably  have  to  be  effected  by  the  estab- 
lishment of  a  Rigid  Constitution. 

Similarly  the  Roman  State  had  its  first  beginnings  in 
the  union  of  neighbouring  tribes,  whose  popular  assem- 
blies coalesced  into  one  assembly.  As  time  went  on, 
the  flexibility  of  the  constitution  permitted  the  extension 
of  political  rights  to  a  number  of  communities  which  had 
lain  outside  the  old  Roman  territory.  But  the  process 
presently  stopped  (so  far  as  effective  political  expansion 
was  concerned),  because  the  representative  system  had 
not  yet  been  invented.  When  after  the  great  revolt  of 
the  Allies  in  B.  c.  90  Rome  was  compelled  to  grant  full 


166  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

citizenship  to  a  large  number  of  Italian  communities,  she 
did  not  take  what  moderns  might  think  the  obvious 
course  of  creating  a  representative  assembly  to  which 
these  allied  communities  might  send  elected  delegates, 
but  merely  distributed  the  new  citizens  among  her  old 
tribes,  an  expedient  which  so  far  improved  the  position 
of  the  Allies  that  they  became  legally  equal  to  Roman 
citizens,  and  acquired  thereby  various  privileges  and 
exemptions,  but  which  extended  to  them  practically  no 
share  in  the  government,  since  few  could  not  come  to 
Rome  to  give  their  votes  in  the  assembly  of  the  people. 
It  may  well  have  been  that  neither  the  oligarchs  nor  the 
leaders  of  the  so-called  popular  party  at  Rome  were 
willing  to  resign  a  substantial  part  of  the  power  of  the 
inhabitants  of  the  City,  with  the  opportunities  of  bribing 
and  being  bribed,  in  exchange  for  the  primacy  of  a 
Federal  or  quasi-Federal  Italian  republic.  But  that  the 
notion  of  a  representative  assembly  had  not  crossed 
men's  minds  appears  from  the  circumstance  that  the 
Italian  Allies  themselves,  when  in  the  course  of  their 
struggle  they  set  up  a  rival  government,  merely  repro- 
duced the  general  lines  of  the  Roman  constitution,  and 
did  not  create  any  representative  council,  excellently  as 
it  might  have  served  their  purpose.  So  strong  was  the 
influence  of  the  idea  of  the  city  community  in  the  ancient 
world,  and  (it  may  be  added)  so  little  power  of  invention 
do  mankind  display  in  the  sphere  of  political  institutions. 
When  an  expanding  State  absorbs  by  way  of  treaty 
other  communities  already  enjoying  a  government  more 
or  less  constitutional,  the  process  now  usually  takes  the 
form  of  creating  a  Federation,  and  a  Federation  almost 
necessarily  implies  a  Rigid  Constitution.  Cases  where 
the  Flexible  Constitution  of  one  State  is  stretched  to 
take  in  another  (as  the  Constitution  of  England  was 
stretched  to  take  in  Scotland)  are  rare.  The  ancient 
Romano-Germanic  Empire  had  a  Flexible  Constitution, 
which,  already  in  an  advanced  stage  of  decay,  was  ex- 
tinguished by  Napoleon.  When  it  was  desired  to  re- 


FLEXIBLE  AM)   R1UID   <'OM*T1TUTW A  x  167 

establish  a  German  Empire  out  of  a  number  of  prac- 
tically independent  States,  this  had  to  be  done  by  the 
creation  of  a  federal  system  under  a  Rigid  Constitution. 
No  similar  device  was  required  in  the  case  of  Italy,  be- 
cause the  communities  which  united  themselves  to  the 
kingdom  of  Sardinia  between  1859  and  1871  had  not 
theretofore  enjoyed  constitutional  government,  had  just 
dismissed  their  whilome  sovereigns,  were  all  eager  for 
union,  and  in  their  eagerness  for  union  cared  but  little 
for  the  maintenance  of  any  local  rights. 

IX.    THE  ORIGIN  OF  RIGID  CONSTITUTIONS. 

We  may  now  pass  on  to  examine  the  other  type  of 
constitution,  that  for  which  I  have  suggested  the  name 
Rigid,  the  specific  character  whereof  resides  in  the  fact 
that  every  constitution  belonging  to  it  enjoys  an  autho- 
rity superior  to  the  authority  of  the  other  laws  of  the 
State,  and  can  be  changed  only  by  a  method  different 
from  that  whereby  those  other  laws  are  enacted  or 
repealed.  This  type  is  younger  than  the  Flexible  type. 
The  latter  goes  back  to  the  very  beginning  of  organized 
political  societies,  being  the  first  form  which  the  organi- 
zation of  such  societies  took.  Rigid  Constitutions,  on 
the  other  hand,  mark  a  comparatively  advanced  stage 
in  political  development,  when  the  idea  of  separating 
fundamental  laws  from  other  laws  has  grown  familiar, 
and  when  considerable  experience  in  the  business  of 
government  and  in  political  affairs  generally  has  been 
accumulated.  Thus  they  have  during  the  last  hundred 
years  been  far  more  in  favour  than  constitutions  of  the 
Flexible  type. 

In  Europe  they  exist  in  every  constitutional  country 
except  the  United  Kingdom,  Hungary,  and  Italy.  There 
are  none  in  the  Asiatic  continent,  but  Asia,  the  cradle 
of  civilization,  possesses  no  constitutional  self-governing 
State  whatever,  except  Japan,  the  Constitution  of  which, 
established  in  1889,  bears  some  resemblance  to  that  of 


168  FLEXIBLE  AND  RIUID   CONSTITUTIONS 

the  German  Empire.  America,  as  a  new  continent,  is 
appropriately  full  of  them.  The  Republic  of  the  United 
States  has  not  only  presented  the  most  remarkable  in- 
stance of  this  type  in  the  modern  world,  but  has  by  its 
success  become  a  pattern  which  other  republics  have 
imitated,  just  as  most  modern  States  in  the  Old  World 
took  England  for  their  model  when  they  established, 
during  the  nineteenth  century,  governments  more  or 
less  free.  The  Constitutions  of  all  the  forty-five  States 
of  the  Union  are  Rigid,  being  not  alterable  by  the  legis- 
latures of  those  States  respectively.  This  is  also  true  of 
the  Constitution  of  the  Dominion  of  Canada,  which  is 
alterable  only  by  the  Imperial  Parliament.  The  Consti- 
tutions of  the  seven  Canadian  Provinces  might,  so  far  as 
their  legislatures  are  concerned,  be  deemed  Flexible, 
being  (except  as  respects  the  office  of  Lieutenant-Gover- 
nor)  alterable  by  ordinary  provincial  statutes,  but  as  all 
Provincial  statutes  are  subject  to  a  Dominion  veto,  they 
are  not  within  the  sole  power  of  the  legislatures.  Mexico 
and  the  five  republics  of  Central  America,  together  with 
the  nine  republics  of  South  America,  have  all  adopted 
Constitutions  which  their  legislatures  have  not  received 
power  to  change.  Africa  is  the  most  backward  of  the 
continents,  but  she  has  in  the  Orange  Free  State  a  tiny 
republic  living  under  a  Rigid  Constitution.  It  has  been 
contended  that  the  Constitution  of  the  South  African 
Republic  (Transvaal)  is  referable  to  the  same  category, 
but  it  is  really  de  inre,  and  it  has  always  been  treated  de 
facto,  as  being  a  Flexible  Constitution1.  The  Constitu- 
tions of  the  Australasian  colonies  present  legal  questions 
of  some  difficulty,  owing  to  the  way  in  which  the  imperial 
Acts  creating  or  confirming  them  have  been  drawn.  So 
far  as  the  method  of  changing  these  Constitutions  has 
been  prescribed  by  statutes  of  the  colonies  in  which 
they  exist,  it  would  appear  that  each  can  also  be  changed 
by  the  legislature  of  the  colony.  Where  those  methods, 
however,  are  prescribed  by  the  British  Parliament,  or  by 

i  See  Essay  VII,  p.  3?8. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  169 

instruments  issuing  from  the  Crown,  the  point  is  more 
doubtful,  and  would  need  a  fuller  discussion  than  it  can 
receive  here.  Questions,  however,  touching  the  rela- 
tions of  a  legally  subordinate  to  a  legally  supreme  legis- 
lature lie  in  a  different  plane,  so  to  speak,  from  that  with 
which  we  are  here  concerned:  and  we  may  say  that  if 
these  colonial  constitutions  are  regarded  solely  as  re- 
spects the  legislatures  of  the  colonies  themselves,  they 
are  referable  to  the  Flexible  type.  As  to  the  new  Federal 
Constitution  of  Australia  there  is  no  doubt  at  all.  It  is 
Rigid  \  for  any  alteration  in  it  requires  a  majority  of  the 
States  and  a  majority  of  the  direct  popular  vote.  All  the 
acts  of  every  British  colony  are  subject  to  a  power  of 
disallowance  by  the  Governor  or  the  Crown,  but  (al- 
though it  is  sometimes  provided  that  constitutional  acts 
shall  be  '  reserved '  for  the  pleasure  of  the  Crown)  this 
power  is  not  confined  to  acts  changing  the  constitution, 
conformably  to  the  English  habit  of  drawing  little  dis- 
tinction between  constitutional  and  other  enactments. 

All  the  above-mentioned  constitutions  are  products  of 
the  last  century  and  a  quarter,  and  it  is  doubtful  whether 
there  existed  in  A.  D.  1776  any  independent  State  the 
constitution  of  which  the  ruling  authority  of  that  State 
could  not  have  changed  in  the  same  way  in  which  it 
changed  its  ordinary  laws.  The  Swiss  Confederation 
does  not  come  into  question,  for  that  Confederation  was, 
until  the  French  laid  hands  on  it  in  the  last  years  of  the 
eighteenth  century,  a  League  of  States  rather  than  a 
State,  and  could  not  be  said  to  have  ^ny  constitution  in 
the  proper  sense,  not  to  add  that  the  republics  of  which 
the  league  consisted  could  alter  the  terms  of  their  league 
in  the  same  way  in  which  they  had  formed  it.  The  same 
remark  applies  to  the  confederation  of  the  seven  United 
Provinces  of  the  Netherlands. 

The  beginnings  of  Rigid  Constitutions  may,  however, 

1  See  as  to  this  Constitution  Essay  VIII,  p.  39»-  As  to  the  Constitutions  of  the 
several  Australian  and  other  British  colonies,  reference  may  be  made  to  the  book 
of  the  late  Sir  Henry  Jenkyns,  entitled  British  Rule  and  Jurisdiction  beyond  the 
Seas,  the  publication  pf  which  is  announced  for  a  very  early  date. 


170  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

be  traced  back  to  the  seventeenth  century.  The  first 
settlers  in  the  British  colonies  in  North  America  lived 
under  governments  created  by  royal  charters  which  the 
colonial  legislatures  could  not  alter,  and  thus  the  idea  of 
an  instrument  superior  to  the  legislature  and  to  the  laws 
it  passed  became  familiar  1.  In  one  colony  (Connecticut) 
the  settlers  drew  up  for  themselves  in  1638  a  set  of  rules 
for  their  government,  called  the  Fundamental  Orders. 
These  Orders,  developed  subsequently  into  a  royal  char- 
ter, were  really  a  rudimentary  constitution.  And  almost 
contemporaneously  the  conception  appeared  in  England 
during  the  Civil  War.  The  Agreement  of  the  People, 
presented  to  the  Long  Parliament  in  1647,  contains  in 
outline  a  Frame  of  Government  for  England  which  was 
meant  to  stand  above  Parliament  and  be  not  changeable 
by  it.  So  Oliver  Cromwell  sought  by  his  Instrument  of 
Government,  promulgated  in  1653,  to  create  a  Rigid 
Constitution,  some  at  least  of  whose  provisions  were  to 
be  placed  beyond  the  reach  of  Parliament,  and  indeed 
apparently  to  be  altogether  unchangeable.  But  his  own 
Parliament  refused  to  recognize  any  part  of  it  as  outside 
their  right  of  interference  2. 

From  this  rapid  geographical  survey  we  may  now 
return  to  examine  the- circumstances  under  which  con- 
stitutions of  this  type  arise.  Their  establishment  is  usu- 
ally due  to  one  or  more  of  the  four  following  motives  : — 

(1)  The  desire  of  the  citizens,  that  is  to  say,  of  the 
part  of  the  population  which  enjoys  political  rights,  to 
secure  their  own  rights  when  threatened,  and  to  restrain 
the  action  of  their  ruler  or  rulers. 

(2)  The  desire  of  the  citizens,  or  of  a  ruler  who  wishes 
to  please  the  citizens,  to  set  out  the  form  of  the  pre- 
existing system  of  government  in  definite  and  positive 
terms  precluding  further  controversy  regarding  it. 

1  Observations  on  this  topic  may  be  found  in  the  author's  A  merican  Common- 
wealth^ chap,  xxxvii. 

2  These  documents  are  printed  in  Dr.  S.  R.  Gardiner's  Constitutional  Docu-* 
•ments  of  the  Puritan  Revolution.    A  concise  account  of  the  Instrument  maybe, 
found  in  Mr.  Goldwin  Smith's  United  Kingdom,  vol.  i.  pp.  605-8. 


/••/,/•; .Y //;/./;  .i.w>  KH;II>  CONSTITUTIONS  m 

(3)  The  desire  of  those  who  are  erecting  a  new  poli- 
tical community  to  embody  the  scheme  of  polity  under 
which  they  propose  to  be  governed,  in  an  instrument 
which  shall  secure  its  permanence  and  make  it  compre- 
hensible by  the  people. 

(4)  The  desire  of  separate  communities,  or  of  distinct 
groups  or  sections  within  a  large  (and  probably  loosely 
united)  community,  to  settle  and  set  forth  the  terms 
under  which  their  respective  rights  and  interests  are  to 
be  safe-guarded,  and  effective  joint  action  in  common 
matters  secured,  through  one  government. 

Of  these  four  cases,  the  two  former  arise  where  an 
existing  State  changes  its  constitution.  The  two  latter 
arise  where  a  new  State  is  created  by  the  gathering 
of  individuals  into  a  community,  or  by  the  union  of 
communities  previously  more  or  less  separate  into  one 
larger  community,  as  for  instance  by  the  forming  of  a 
Federation. 

Note  further  that  Rigid  Constitutions  arise  in  some 
one  of  four  possible  ways. 

i.  They  may  be  given  by  a  monarch  to  his  subjects 
in  order  to  pledge  himself  and  his  successors  to  govern 
in  a  regular  and  constitutional  manner,  avoiding  former 
abuses.  Several  modern  European  constitutions  have 
thus  come  into  being,  of  which  that  of  the  Kingdom  of 
Prussia,  granted  by  King  Frederick  William  the  Fourth 
in  1850,  is  a  familiar  example.  The  Statute  or  Funda- 
mental Law  of  the  Kingdom  of  Sardinia,  now  expanded 
into  the  Kingdom  of  Italy,  was  at  one  time  deemed 
another  instance.  It  is  now,  however,  held  to  be  a  Flexi- 
ble Constitution.  Magna  Charta  would  have  been  a 
fragment  of  such  a  constitution  had  it  been  legally  placed 
out  of  the  possibility  of  any  change  being  made  in  it 
by  the  Great  Council,  then  the  supreme  legislature  of 
England,  but  it  was  enacted  by  the  king  in  his  Great 
Council,  and  has  always  been  alterable  by  the  same 
authority.  The  Ch-artc  Constitutionncllc  for  France  issued 
by  Louis  the  Eighteenth  in  1814,  and  renewed  in  an 


172  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

altered  form  on  the  choice  of  Louis  Philippe  as  king  in 
1830,  and  the  Constitutions  granted  by  their  respective 
kings  to  Spain  and  to  Portugal,  are  similar  instances. 

2.  They  may  be  created  by  a  nation  for  itself  when 
it  has  thrown  off  (or  been  released  from)  its  old  form  of 
government,  and  desires  to  create  another  entirely  de 
novo.    The  various  Constitutions  of  the  various  French 
Republics  from  1790  downwards  are  instances,  as  is  the 
Constitution  of  the  Orange  Free  State  1  and  the  present 
(A.  D.  1901)  Constitution  of  Brazil.    To  this  category  also 
belong  the  Constitutions  of  the  original  thirteen  States 
of  the  American  Union.    Two  of  these  States,  however, 
were  content  to  retain  the  substance  of  the  charter-con- 
stitutions under  which  they  had  lived  as  British  Colonies, 
merely  turning  them  into  State  constitutions,  with  noth- 
ing but  the  Confederation  above  them,  that  Confedera- 
tion being  then  a  mere   League   and  not  a   National 
Government.    The  Constitution  of  the  Austrian  part  of 
the  Austro-Hungarian  monarchy  may  also  be  referred  to 
this  category.     It  consists  of  five  Fundamental  Laws, 
enacted  in  1867,  and  alterable  by  the  legislature  only 
in  a  specially  prescribed  manner. 

3.  They  may  be  created  by  a  new  community,  not 
theretofore  a  nation,  when  it  deliberately  and  formally 
enters  upon  organized  political  life  as  a  self-governing 
State,  whether  or  no  as  also  a  member  of  any  larger 
political  body.    Such  are  the  Constitutions  of  the  States 
of  the  American  Union  formed  since  1790.     Such  was 
the  original  Constitution  of  Belgium,  a  country  which 
had  been  previously  a  part  of  the  Kingdom  of  Holland. 
Such  is  the  Constitution  of  the  Dominion  of  Canada, 
though  it  is  a  peculiar  feature  of  this  instrument — arid 
the  same  is  true  of  the  Constitutions  of  all  the  self- 
governing  British  Colonies — that  it  has  been  created 
not  by  the  community  which  it  regulates  but  by  an 
external  authority,  that  of  the  Parliament  of  the  United 
Kingdom,  in  a  statute  of  A.  D.  1867.     Being  unchange- 

i  See  Essay  VII,  p.  361. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  173 

able  by  the  Dominion  Legislature,  it  is  a  Rigid  Con- 
stitution within  the  terms  of  our  definition,  although 
changeable,  like  any  other  statute,  by  the  British  Par- 
liament. The  new  Federal  Constitution  of  Australia 
belongs  to  the  same  class  and  had  a  like  origin  1. 

4.  They  may  arise  by  the  tightening  of  a  looser  tie 
which  has  theretofore  existed  between  various  self- 
governing  communities.  When  external  dangers  or  eco- 
nomic interests  have  led  such  communities  to  desire 
a  closer  union  than  treaties  or  federative  agreements 
have  previously  created,  such  communities  may  unite 
themselves  into  one  nation,  and  give  that  new  nation 
a  government  by  means  of  an  instrument  which  is  there- 
after not  only  to  hold  them  together  but  to  provide  for 
their  action  as  a  single  body.  This  process  of  turning  a 
League  of  States  (Staatenbund)  into  a  Federal  State 
(Bundcsstaai)  is  practically  certain  to  create  a  Rigid  Con- 
stitution, for  the  component  communities  which  are  so 
uniting  will  of  course  desire  that  the  rights  of  each  shall 
be  safeguarded  by  interposing  obstacles  and  delays  to 
any  action  tending  to  change  the  terms  of  their  union, 
and  they  will  therefore  place  the  constitution  out  of  the 
reach  of  amendment  by  the  ordinary  legislature.  Cases 
may,  however,  be  imagined  in  which  the  component 
communities  might  be  willing  to  forego  this  safeguard. 
The  Achaean  League  did  so;  and  its  constitution  was 
therefore  a  flexible  one,  but  then  the  Achaean  League 
can  hardly  be  said  to  have  been  a  single  State  in  the  strict 
sense  of  the  word.  It  was  rather  a  league,  though  a  close 
league,  of  States,  like  the  Swiss  Confederation  in  the 
eighteenth  century. 

The  most  familiar  instances  of  this  fourth  kind  of 
origin  are  the  United  States  of  North  America,  the 
Federation  of  Mexico  (unless  it  be  referred  to  the  second 
class),  and  the  present  Swiss  Confederation.  To  this 

1  As  to  this  Constitution  see  Essay  VIII.  Unlike  the  Constitution  of  Canada, 
it  can  be  amended  by  the  people  of  Australia  without  the  aid  of  the  Imperial 
Parliament. 


174  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

class  may  also  be  referred  the  very  peculiar  case  of  the 
new  German  Empire,  which  by  two  steps,  in  1866  and  in 
1871,  has  created  itself  out  of  the  pre-existing  Germanic 
Confederation  of  1815,  that  Confederation  having  been 
formed  by  the  decay  into  fragments  of  the  ancient  East 
Frankish  or  German  kingdom,  which  had,  throughout 
the  Middle  Ages,  a  Flexible  Constitution  resembling 
that  of  the  England  or  France  or  Castile  of  the  thirteenth 
century. 

X.    THE  'ENACTMENT  AND  AMENDMENT  OF  RIGID 
CONSTITUTIONS. 

Before  proceeding  to  consider  the  methods  by  which 
these  constitutions  may  be  enacted  and  changed,  it  is 
worth  while  to  suggest  an  explanation  of  their  compara- 
tive recent  appearance  in  history.  Documentary  consti- 
tutions, i.e.  those  contained  in  one  or  several  instruments 
prepared  for  the  purpose,  are  old.  There  were  many 
of  them  in  the  Greek  cities;  and  efforts  were  some- 
times made  when  they  were  enacted  to  secure  their 
permanence  by  declaring  them  to  be  unchangeable.  But 
in  the  old  days  when  City  States  (and  sometimes  also 
small  Rural  States)  were  ruled  by  Primary  Assemblies, 
consisting  of  all  free  citizens,  there  was  no  authority 
higher  than  the  legislature  that  could  be  found  to  enact 
a  constitution,  seeing  that  the  legislature  consisted  of  the 
whole  body  of  the  citizens.  In  those  days,  accordingly, 
when  it  was  decided  to  give  peculiar  permanence  to  some 
political  arrangement,  so  that  no  subsequent  assembly 
of  the  people  should  upset  it,  two  expedients  were  re- 
sorted to.  One  was  to  make  all  the  leading  men,  perhaps 
the  whole  people,  swear  solemnly  to  maintain  it,  and 
thereby  to  bring  in  the  deities  of  the  States  as  co-enact- 
ing or  at  least  protecting  and  guaranteeing  parties. 
Tradition  attributed  this  expedient  to  Lycurgus  at 
Sparta.  The  other  was  to  provide  in  the  law  intended  to 
be  Fundamental  that  no  proposal  to  repeal  it  should  ever 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  175 

be  entertained,  or  to  declare  a  heavy  penalty  on  the 
audacious  man  who  should  make  the  proposal.  The 
objection  to  both  these  expedients  was  that  they  de- 
barred any  amendment,  however  desirable,  and  however 
generally  desired.  Hence  they  were  in  practice  little 
regarded,  though  the  exceptionally  pious  or  supersti- 
tious Spartans  were  deemed  to  be  largely  deterred  from 
governmental  changes  by  the  fear  of  divine  disapproval. 
Moreover,  the  second  of  the  above-named  devices  or 
barriers  could  be  easily  turned  by  proposing  to  repeal, 
not  the  Fundamental  law  itself,  but  the  prohibition  and 
the  penalty.  These  having  been  repealed — and  of  course 
the  proposal  would  not  be  made  unless  its  success  were 
pretty  well  assured — the  Fundamental  Law  would  then 
itself  be  forthwith  repealed.  It  must,  however,  be  added 
that  even  if  the  Greek  cities  had  adopted  what  seems  to 
us  the  obvious  plan  of  requiring  a  certain  majority  of 
votes  (say  two-thirds)  for  a  change  in  the  Fundamental 
Law,  or  had  required  it  to  be  passed  by  four  Assemblies 
in  succession  at  intervals  of  three  months,  one  may  doubt 
whether  such  provisions  would  have  restrained  a  ma- 
jority in  communities  which  were  small,  excitable,  and 
seldom  legally-minded. 

Those  who  have  suggested  that  the  United  Kingdom 
ought  to  embody  certain  parts  of  what  we  call  the 
British  Constitution  in  a  Fundamental  Statute  (or  Sta- 
tutes) and  to  declare  such  a  statute  unchangeable  by  Par- 
liament, or  by  Parliament  acting  under  its  ordinary 
forms,  seem  to  forget  that  the  Act  declaring  the  Funda- 
mental Statute  to  be  Fundamental  and  unchangeable  by 
Parliament  would  itself  be  an  Act  like  any  other  Act, 
and  could  be  repealed  by  another  ordinary  statute  in 
the  ordinary  way.  All  that  this  contrivance  would  obtain 
would  be  to  interpose  an  additional  stage  in  the  process 
of  abolition  or  amendment,  and  to  call  the  attention  both 
of  the  people  and  the  legislature  in  an  emphatic  way  to 
the  fact  that  a  very  solemn  decision  was  being  reversed. 
Some  may  think  that  such  a  security,  if  imperfect,  would 


176  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

be  worth  having.  The  restraint  imposed  would,  however, 
be  a  moral  not  a  legal  one  *. 

A  constitution  placed  out  of  the  power  of  the  legis- 
lature may  or  may  not  be  susceptible  of  alteration  in 
a  legal  manner.  Sometimes  no  provision  has  been  made, 
when  it  was  first  established,  for  any  change  whatever. 
There  are  instances  of  this  among  constitutions  granted 
by  a  monarch  to  his  subjects — such  seems  to  be  to-day 
the  case  in  Spain — but  in  cases  of  this  kind  it  might  pos- 
sibly be  held  that  the  grantor  implicitly  reserved  the 
power  to  vary  his  grant,  as  there  may  not  have  been 
expressed  in  the  document,  and  need  not  be,  any  bilateral 
obligation.  As  already  observed,  the  Constitution  of  the 
present  Kingdom  of  Italy  was  originally  granted  to  the 
Kingdom  of  Sardinia  by  King  Charles  Albert  in  1848; 
and  it  was  for  a  long  time  held  that  the  power  to  change 
it  resided  in  the  Crown  only.  It  was  extended  by  a  suc- 
cession of  popular  votes  (1859  to  1871)  to  the  rest  of 
Italy,  and  some  conceive  that  this  sanction  makes  at 
least  its  fundamental  parts  unchangeable.  But  the  view 
that  it  is  alterable  by  legislation  has  prevailed,  and  it  has 
in  fact  been  so  altered  in  some  points.  The  Charte  Con- 
stitutionnelle  granted  by  Louis  XVIII,  under  which  the 
government  of  France  was  carried  on  for  many  years, 

1  Soon  after  the  above  lines  were  written,  the  point  they  deal  with  came  up  in 
Parliament  in  a  practical  form.  In  the  debate  on  the  Irish  Home  Rule  Bill  of 
1886  the  question  emerged  whether  Parliament  could  in  constituting  a  legislature 
for  Ireland  and  assigning  to  that  legislature  a  certain  sphere  of  action  legally  de- 
bar itself  from  recalling  its  grant  or  from  legislating,  upon  matters  falling  within 
that  sphere,  over  the  head  of  the  Irish  legislature.  It  was  generally  agreed  by 
lawyers  that  Parliament  could  not  so  limit  its  own  powers,  and  that  no  statute  it 
might  pass  could  be  made  unchangeable,  or  indeed  could  in  any  way  restrict  the 
powers  of  future  Parliaments. 

Upon  the  general  question  whether  Parliament  could  so  enact  any  new  Consti- 
tution for  the  United  Kingdom  as  to  debar  itself  from  subsequently  repealing  that 
Constitution,  it  may  be  suggested,  for  the  consideration  of  those  who  relish  techni- 
calities, that  Parliament  could,  if  so  disposed,  divest  itself  of  its  present  authority 
by  a  sort  of  suicide,  i.e.  by  repealing  all  the  statutes  under  which  it  is  now  sum- 
moned, and  abolishing  the  common-law  right  of  the  Crown  to  summon  it,  and 
thereupon  causing  itself  to  be  forthwith  dissolved,  having  of  course  first  provided 
means  for  summoning  such  an  assembly,  or  assemblies,  as  the  new  Constitution 
created.  There  would  then  be  no  legal  means  of  summoning  another  Parliament 
of  the  old  kind,  and  the  new  Constitution,  whatever  it  was,  would  therefore  not 
be  liable  to  be  altered  save  in  such  manner  as  its  own  terms  provided. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  177 

was  intended  to  create  a  sort  of  parliamentary  govern- 
ment, in  the  first  instance  by  way  of  gift  from  the  sove- 
reign, but  afterwards,  under  Louis  Philippe,  by  way  of  a 
compact,  or  kind  of  covenant  between  monarch  and  peo- 
ple. The  fact  that  it  contained  no  provisions  for  altera- 
tion, having  apparently  been  designed  to  last  for  ever, 
worked  against  it;  and  the  discontents  of  France  may 
have  ripened  the  faster  because  no  constitutional  method 
had  been  provided  for  appeasing  them  by  changes  in  the 
machinery  of  government.  Nothing  human  is  immortal ; 
and  constitution-makers  do  well  to  remember  that  the 
less  they  presume  on  the  long  life  of  their  work  the 
longer  it  is  likely  to  live. 

The  Constitutions  of  Norway  (created  in  1814,  but 
subsequently  altered)  and  of  Greece  (created  in  1864) 
declare  that  amendments  are  to  be  confined  to  matters 
not  fundamental,  but  omit  to  specify  the  matters  falling 
under  that  description. 

The  existing  Constitution  of  France  is  so  far  legally 
unalterable  that  no  proposition  for  abolishing  the  re- 
publican form  of  government  can  be  entertained.  If  it 
be  asked,  What  is  a  republican  form?  one  may  answer 
that  if  ever  the  question  has  to  be  answered,  it  will 
be  not  so  much  by  the  via  iuris  as  by  the  via  facti.  So 
also  the  Constitution  of  the  United  States  is  in  one 
respect  virtually,  if  not  technically,  unchangeable.  No 
State  can  without  its  own  consent  be  deprived  of  its 
equal  representation  in  the  Senate.  As  no  State  is  ever 
likely  to  consent  to  such  a  change,  the  change  may  be 
deemed  legally  unattainable ;  and  that  any  State  against 
which  it  was  attempted  to  enforce  a  reduction  of  its  re- 
presentation effected  by  constitutional  amendments  to 
which  it  had  refused  assent  would  be  legally  justified 
in  considering  itself  out  of  the  Union.  In  accordance 
with  this  American  precedent,  the  new  Constitution  of 
Australia  declares  that  no  State  can  have  its  propor- 
tionate representation  in  the  Parliament,  or  the  mini- 
mum number  of  its  representatives  in  the  House  of 
12 


178  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

Representatives,  reduced  without  the  approval  of  a  ma- 
jority of  its  electors  voting  on  a  constitutional  amend- 
ment l. 

Among  the  methods  by  which  constitutions  of  the 
Rigid  type  make,  as  they  now  almost  invariably  do, 
provision  for  their  own  amendment,  four  deserve  to  be 
enumerated. 

The  first  is  to  give  the  function  to  the  Legislature, 
but  under  conditions  which  oblige  it  to  act  in  a  special 
way,  different  from  that  by  which  ordinary  statutes  are 
passed.  There  may,  for  instance,  be  required  a  fixed 
quorum  of  members  for  the  consideration  of  amend- 
ments. Belgium  fixes  this  quorum  at  two-thirds  of  each 
House,  while  also  requiring  a  two-thirds  majority  of 
each  House  for  a  change.  Bavaria  requires  a  quorum  of 
three-fourths  of  the  members  of  each  House ;  Rumania 
one  of  two-thirds.  Or  again — and  this  is  a  very  frequent 
provision,  found  even  when  that  last-mentioned  is  want- 
ing— a  specified  minimum  majority  of  votes  may  be  re- 
quired to  carry  an  amendment.  Sometimes  this  majority 
is  three-fourths  (as  in  Greece  and  Saxony,  and  in  the 
German  Empire  for  a  vote  of  the  Federal  Council) :  more 
frequently  it  is  two-thirds,  as  in  the  United  States  Con- 
gress, in  the  Mexican  Chambers,  in  Norway,  Belgium, 
Rumania,  Servia,  Bulgaria.  Another  plan  is  to  require 
a  dissolution  of  the  Legislature,  so  that  the  amendments 
carried  in  one  session  may  come  under  the  judgement  of 
the  electors  at  a  general  election,  and  be  thereafter 
passed,  or  rejected,  by  the  newly  chosen  Legislature. 
This  arrangement,  often  combined  with  the  two-thirds 
majority  rule,  prevails  in  Holland,  Norway,  Rumania, 
Portugal,  Iceland,  Sweden  (where  the  amendment  must 
have  been  passed  in  two  ordinary  successive  sessions), 
and  several  other  States,  including  some  of  the  republics 
of  Spanish  America.  It  is  in  substance  an  appeal  to  the 
people  as  well  as  to  their  representatives,  and  therefore 
adds  a  further  guarantee  against  hasty  change.  Finally, 

i  See  Essay  VIII. 


/••/,/•;  A //;/,/;  .\\n  itnnn  CONSTITUTIONS  ITII 

the  two  Houses  of  the  Legislature  may  sit  together  as 
a  Constituent  Assembly.  Thus  in  France  (Constitution 
of  1875)  when  each  Chamber  has  resolved  that  the  Con- 
stitution shall  be  revised,  the  two  are  for  the  moment 
fused,  and  proceed  to  debate  and  pass  amendments. 
Haiti  (Constitution  of  1899)  has  a  similar  plan,  which, 
oddly  enough,  was  not  borrowed  from  France,  but  is  as 
old  as  1843.  Few  will  suspect  France  of  borrowing  from 
Haiti. 

A  second  plan  is  to  create  a  special  body  for  the  work 
of  revision.  In  the  United  States,  where  a  vast  deal  of 
constitution  making  and  revising  goes  on  in  the  several 
States,  such  a  body  is  called  a  Convention,  and  is  usually 
elected  when  it  is  desired  to  re-draft  the  whole  constitu- 
tion, the  ultimate  approval  of  the  draft  being,  however, 
almost  always  reserved  for  the  people  1.  In  Servia  and 
Bulgaria,  after  amendments  have  been  twice  passed  by 
the  ordinary  Legislature,  a  sort  of  Special  Assembly, 
similarly  elected,  but  twice  as  large,  called  the  Great 
Sknptschina  (in  Servia)  or  Great  Sobranje  (in  Bul- 
garia), receives  and  finally  decides  on  the  proposed 
amendments. 

The  republics  of  Paraguay,  Guatemala,  Honduras, 
Nicaragua,  and  Salvador  also  prescribe  Conventions, 
preceded  in  each  case  by  votes  of  the  Legislature,  such 
votes  usually  requiring  a  two-thirds  majority  2. 

A  third  plan  is  to  refer  the  new  constitution,  or  the 
amendments  proposed  (if  the  revision  is  partial),  to  a 
number  of  minor  or  local  authorities  for  approval.  This 
course  is  an  obviously  suitable  one  in  a  federation,  and 
has  accordingly  been  adopted  by  the  United  States,  by 
Mexico,  by  Colombia,  by  Switzerland,  and  by  the  new 

1  But  the  Constitution  of  Mississippi  of  1890  was  enacted  by  a  Convention  only 
and  never  submitted  to  the  people.  See  as  to  the  United  States  the  author's 
American  Commonwealth,  ch.  xxxvii. 

9  On  the  whole  subject  of  the  modes  of  amending  constitutions  reference  may 
be  made  to  the  valuable  book  of  my  friend  M.  Charles  Borgeaud,  Professor  at 
Geneva,  fttablissement  et  Revision  des  Constitutions.  See  also  Dareste,  Les  Con- 
stitutions Modernes.  I  owe  to  these  books,  and  especially  to  the  former,  most  of 
the  facts  here  given  regarding  the  minor  States. 


180  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

Australian  Commonwealth,  in  all  of  which  the  com- 
ponent States  are  consulted,  the  United  States  requiring 
a  three-fourths  majority  of  States,  Switzerland,  Austra- 
lia, and  Mexico  a  bare  majority.  (Switzerland  and  Aus- 
tralia also  require  a  majority  of  the  citizens  generally.) 
It  is  not,  however,  invariable  in  federal  countries,  for  the 
Argentine  Confederation  entrusts  amendment  to  a  Con- 
vention, following  on  a  three-fourths  majority  vote  of 
the  Legislature,  and  Brazil  (now  a  federal  country) 
leaves  it  to  the  Legislature  alone,  acting  by  a  two-thirds 
majority  in  three  successive  debates.  Neither  is  such 
a  plan  necessarily  confined  to  a  federation,  for  the  exist- 
ing Constitution  of  Massachusetts  was  (in  1780)  sub- 
mitted to  the  Towns  (i.e.  townships)  of  the  State,  acting 
as  communities,  and  enacted  by  the  majority  of  them. 

The  fourth  plan  is  to  refer  amendments  to  the  direct 
vote  of  the  people.  Originating  in  the  New  England 
States  of  America,  where  democracy  earliest  prevailed, 
this  method  has  spread  to  Switzerland  and  to  Australia, 
both  of  which  require  for  alterations  in  the  Funda- 
mental Instrument  a  majority  of  the  electors  voting 
as  well  as  a  majority  of  the  States.  It  prevails  now 
not  only  in  these  two  federations,  but  also  in  the  several 
States  of  the  United  States  (with  very  rare  exceptions). 
A  bare  majority  of  votes  is  sufficient,  except  in  Rhode 
Island,  where  three-fifths  are  required,  and  in  Indiana 
and  Oregon,  which  require  a  majority  of  all  the  qualified 
voters.  The  popular  vote  is  also  in  use  in  the  several 
Cantons  of  Switzerland.  It  was  repeatedly  employed 
in  France  during  the  first  Revolution,  and  again  (under 
the  name  of  plebiscite)  by  Louis  Napoleon  under  the 
Second  Empire. 

These  variations  in  the  mode  of  amending  are  in- 
teresting enough  to  deserve  a  few  comments. 

Broadly  speaking,  two  methods  of  amendment  are 
most  in  use :  that  which  gives  the  function  to  the  Legis- 
lature, usually  requiring  something  more  than  a  bare 
majority,  and  that  which  gives  it  to  the  People,  i.e.  the 


FLEXIBLE  AMD   ItlVID   CONSTITUTIONS  181 

qualified  voters.  The  former  of  these  methods  often 
directs  a  dissolution  of  the  Legislature  to  precede  the 
final  vote  on  amendments,  and  in  this  way  secures  for 
the  people  a  means  of  delivering  their  judgement  on 
the  questions  at  issue.  The  latter  method  is,  however, 
a  more  distinct  and  emphatic,  because  a  more  direct,  re- 
cognition of  Popular  Sovereignty;  and  it  has  the  advan- 
tage of  making  the  constitution  appear  to  be  the  work 
of  the  Nation  as  a  whole,  apart  from  faction,  whereas 
in  the  Legislature  it  may  have  been  by  a  party  vote  that 
the  amendments  have  been  carried.  Thus  it  supplies 
the  broadest  and  firmest  basis  on  which  a  Frame  of 
Government  can  rest.  The  Convention  system  is  inter- 
mediate between  the  two  others,  and  has  struck  no  deep 
roots  in  the  Old  World,  while  in  the  United  States  it 
has  been  virtually  superseded  (as  respects  enactment) 
by  that  of  the  direct  Popular  Vote. 

Geographically  regarded,  the  method  of  revision  by 
Legislature  prevails  over  Europe  and  over  most  of 
Spanish  America  (being  in  the  latter  region  sometimes 
combined  with  the  Convention  method).  The  Constitu- 
tion which  has  most  influenced  others  in  Europe  and 
become  a  type  for  them  in  this  respect  is  that  of  Holland 
(1814),  because  it  was  the  earliest  one  established  after 
the  revolutionary  period.  On  the  other  hand,  the  United 
States  (except  the  Federal  Government)  and  the  demo- 
cratic governments  of  the  Swiss  and  Australian  Federa- 
tions are  ruled  by  the  Popular  method.  The  Constitu- 
tion which  has  set  the  type  of  this  method  is  that  of 
Massachusetts  of  1780. 

As  respects  facility  of  change,  it  is  interesting  to  note 
that  the  Constitutions  which  are  most  quickly  and  easily 
altered  are  those  of  Prussia,  which  prescribes  no  safe- 
guard save  that  of  two  successive  votes  separated  by  an 
interval  of  at  least  twenty-one  days,  and  that  of  France, 
which  requires  an  absolute  majority  of  each  House  for 
a  proposal  to  revise,  and  an  absolute  majority  of  the  two. 
Houses  sitting  together  for  the  carrying  of  any  amend- 


182  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

ment.  The  omission  of  the  French  Chambers  in  1875  to 
submit  to  the  people  the  constitution  then  framed,  or  to 
provide  for  their  sanction  to  any  future  amendments, 
was  due  to  the  doubt  which  each  party  felt  of  the  result 
of  an  appeal  to  the  nation.  The  Republicans,  though 
able  to  prevent  the  establishment  of  a  monarchical  con- 
stitution by  the  Legislature,  were  not  quite  sure  that 
a  republican  one  would  be  carried  if  submitted  to  a 
popular  vote.  Thus  it  has  come  about  that  France, 
which  went  further  towards  popular  sovereignty  in  1793 
than  any  great  country  has  ever  done,  has  lived  since 
1875  under  an  instrument  never  ratified  by  the  people, 
and  which  was  originally  regarded  as  purely  provi- 
sional. 

The  Constitution  which  it  is  most  difficult  to  change 
is  that  of  the  United  States.  It  has  in  fact  never  been 
amended  since  1809,  except  thrice  between  1865  and 
1870,  immediately  after  and  in  consequence  of  the  Civil 
War,  and  then  under  conditions  entirely  abnormal,  be- 
cause some  States  were  under  military  duress. 

The  tendency  of  recent  years  has  been  towards  easier 
and  swifter  methods  than  those  which  were  in  favour 
during  the  first  half  of  the  nineteenth  century:  and  in 
Germany  lawyers  and  publicists  are  now  disposed  to 
minimize  the  difference  between  constitutional  changes 
and  ordinary  statutes,  partly  perhaps  because  doctrines 
of  popular  sovereignty  obtain  little  sympathy  from  the 
school  dominant  in  the  new  Empire.  That  Empire  itself 
presents  quite  peculiar  phenomena.  So  far  as  the  Reichs- 
tag or  Federal  Assembly  is  concerned,  the  constitution 
can  be  altered  by  ordinary  legislation.  But  in  the  Federal 
Council  a  majority  is  required  large  enough  to  enable 
either  Prussia  on  the  one  hand  or  a  combination  of  the 
smaller  States  on  the  other  to  prevent  any  change. 
This  is  because  the  component  members  of  the  Federa- 
tion are  not  republics,  as  in  America,  Switzerland,  and 
Australia,  but  are  (except  the  three  Hanse  cities)  monar- 
chies, so  that  the  Upper  Federal  House  represents  not 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  183 

the  people  but  the  governments  of  the  several  German 
States. 

It  is  evident  that  the  greater  or  less  stability  of  any 
given  constitution  will  (other  things  being  equal)  be 
determined  by  the  comparative  difficulty  or  ease  of  carry- 
ing changes  in  one  or  other  of  the  above  methods.  As 
one  at  least  of  them,  that  of  committing  the  function  of 
revision  to  a  Constitutional  Convention  not  followed 
by  a  popular  vote,  seems  to  interpose  no  more,  and 
possibly  even  less,  difficulty  or  delay  than  does  the 
ordinary  process  of  law-making  by  a  two-chambered 
legislature,  it  may  be  asked  why  a  constitution  change- 
able in  such  a  way  should  be  called  Rigid  at  all.  Because 
inasmuch  as  the  method  of  changing  it  is  different  from 
that  of  passing  ordinary  statutes,  the  people  are  led  to 
realize  the  importance  of  the  occasion,  and  may  be  de- 
terred, by  the  trouble  and  formalities  involved  in  creating 
the  special  body,  from  too  lightly  or  frequently  tamper- 
ing with  their  fundamental  laws.  It  seems  a  more  mo- 
mentous step  to  create  this  convention  ad  hoc  than  to 
carry  a  measure  through  a  legislature  which  already 
exists,  and  is  daily  employed  on  legislative  work.  Ex- 
perience has,  moreover,  shown  in  the  United  States,  the 
country  in  which  this  method  has  been  largely  used  for 
redrafting,  or  preparing  amendments  to,  the  Constitu- 
tions of  the  several  States1,  that  a  set  of  men  can  be 
found  for  the  work  of  a  Convention  better  than  those 
who  form  the  ordinary  legislature  of  the  State,  and  that 
their  proceedings  when  assembled  excite  more  attention 
and  evoke  more  discussion  than  do  those  of  a  State 
Legislature,  a  body  which  now  receives  little  respect, 
though  perhaps  as  much  as  it  deserves.  Nowadays, 
however,  a  draft  constitution  prepared  by  a  Convention 
is  in  an  American  State  almost  always  submitted  to  the 
people  for  their  approval. 

1  No  Constitutional  Convention  has  ever  been  held  for  revising  the  Federal 
Constitution  of  1787-9,  which  was  drafted  by  a  Convention  and  adopted  by  the 
thirteen  States  in  succession. 


184  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

The  French  plan  of  using  the  two  Houses  sitting 
together  as  a  Constituent  Convention  has  a  certain  in- 
terest for  Englishmen,  because  the  suggestion  has  been 
made  that  disputes  between  their  House  of  Lords  and 
House  of  Commons  might  be  settled  by  a  vote  of  both 
sitting  together,  i.e.  of  the  whole  of  the  Great  Council 
of  the  Nation  l  as  it  sat  in  the  thirteenth  century  before 
it  had  formed  the  habit  of  debating  and  voting  in  two 
Houses.  It  still  meets  (but  does  not  debate  or  vote) 
as  one  body  when  the  Sovereign,  or  a  Commission  re- 
presenting the  Sovereign,  is  present,  as  happens  at  the 
beginning  and  at  the  end  of  each  session. 

To  examine  the  distinctive  qualities  of  Rigid  Consti- 
tutions, as  I  must  now  do,  is  virtually  to  traverse  again 
the  same  path  which  was  followed  in  investigating  those 
of  the  Flexible  type,  for  the  points  in  which  the  latter 
were  found  deficient  are  those  in  which  Rigid  Constitu- 
tions excel,  while  the  merits  of  the  Flexible  indicate  the 
faults  of  the  Rigid.  The  inquiry  may,  therefore,  be  brief. 

The  two  distinctive  merits  claimed  for  these  Consti- 
tutions are  their  Definiteness  and  their  Stability. 

XI.    THE  DEFINITENESS  OF  RIGID  CONSTITUTIONS. 

We  have  seen  that  the  distinctive  mark  of  these  Rigid 
Constitutions  is  their  superiority  to  ordinary  statutes. 
They  are  not  the  work  of  the  ordinary  legislature,  and 
therefore  cannot  be  changed  by  it.  They  are  embodied 
in  one  written  document,  or  possibly  in  a  few  documents, 
so  that  their  provisions  are  ascertainable  without  doubt 
by  a  reference  to  the  documentary  terms.  This  feature 
is  a  legitimate  consequence  of  the  importance  which  be- 
longs to  a  law  placed  above  all  other  laws.  That  which 

1  This  plan  would  have  more  chance  of  being  favourably  entertained  were  the 
Upper  House  now,  as  it  was  in  1760,  less  than  two  hundred  strong.  As  it  is  now 
nearly  as  large  as  the  House  of  Commons,  with  a  majority  of  about  fourteen  to 
one  belonging  to  one  political  party,  the  party  which  is  in  a  permanent  minority 
might  feel  that  the  chances  are  not  equal. 


FLEX111LI-:   AM>    KKSID    CO \sTITUTIONS  185 

is  to  be  the  sheet-anchor  of  the  State,  giving  permanent 
shape  to  its  political  scheme,  cannot  be  left  unwritten, 
and  cannot  be  left  to  be  gathered  from  a  comparison  of  a 
considerable  number  of  documents  which  may  be  con- 
fused or  inconsistent.  Whether  it  spring  from  the  agree- 
ment of  the  citizens  or  from  the  free  gift  of  a  monarch, 
it  must  be  embodied  if  possible  in  one,  if  not,  at  any  rate 
in  only  a  few  solemn  instruments.  That  which  is  to  be  a 
fundamental  law,  limiting  the  power  of  the  legislature, 
must  be  set  forth  in  specific  and  unmistakable  terms — 
else  how  shall  it  be  known  when  the  legislature  is  infring- 
ing upon  or  violating  it  ?  A  Flexible  Constitution,  which 
the  legislature  can  modify  or  destroy  at  its  pleasure, 
though  it  might  conceivably  be  embodied  in  one  docu- 
ment only,  is  in  fact  almost  always  to  be  collected  from 
at  least  several  documents,  and  is  often,  like  the  Flexible 
Constitution  of  England,  scattered  through  a  multitude 
of  statutes  and  collections  of  precedents.  But  the  bene- 
fits expected  from  a  Rigid  Constitution  would  be  lost 
were  its  provisions  left  in  similar  confusion. 

It  is  not,  however,  to  be  supposed  that  the  citizen  of 
a  country  controlled  by  a  Rigid  Constitution  who  desires 
to  understand  the  full  scope  and  nature  of  his  govern- 
ment will  find  all  that  he  needs  in  the  document  itself. 
No  law  ever  was  so  written  as  to  anticipate  and  cover  all 
the  cases  that  can  possibly  arise  under  it1.  There  will 
always  be  omissions,  some  left  intentionally,  because  the 
points  not  specifically  covered  were  deemed  fitter  for  the 
legislature  to  deal  with  subsequently,  some,  again,  be- 
cause the  framers  of  the  constitution  could  not  agree,  or 
knew  that  the  enacting  authority  would  not  agree,  re- 
garding them.  Other  omissions,  unnoticed  at  the  time, 
will  be  disclosed  by  the  course  of  events,  for  questions 
are  sure  to  arise  which  the  imagination  or  foresight  of 
those  who  prepared  the  constitution  never  contemplated. 
There  will  also  be  expressions  whose  meaning  is  ob- 

1  '  Neque  leges  neque  senatus  consulta  ita  scribi  possunt,  ut  omnes  casus  qui 
quandoque  inciderint  comprehendantur.'— lulianus  in  Digest  i.  3,  10. 


186  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

scure,  and  whose  application  to  unforeseen  cases  will  be 
found  doubtful  when  those  cases  have  to  be  dealt  with. 
Here  let  us  distinguish  three  classes  of  omissions  or 
obscurities : — 

The  first  class  includes  matters,  passed  over  in  silence 
by  the  written  constitution,  which  cannot  be  deemed  to 
have  been  left  to  be  settled  either  by  the  legislature  or 
by  any  other  organ  of  government,  because  they  are  too 
large  or  grave,  as  for  instance  matters  by  dealing  with 
which  the  legislature  would  disturb  the  balance  of  the 
constitution  and  encroach  on  the  province  of  the  Execu- 
tive, or  the  Judiciary,  or  (in  a  Federal  Government)  of 
the  component  States.  Matters  belonging  to  this  class 
can  only  be  dealt  with  by  an  amendment  of  the  consti- 
tution itself. 

The  second  class  includes  gaps  or  omissions  relating 
to  matters  not  palpably  outside  the  competence  of  the 
legislature  as  defined  by  the  constitution.  Here  the 
proper  course  will  be  for  the  legislature  to  regulate 
such  matters  by  statute,  or  else  to  leave  them  to  be 
settled  by  the  action  of  the  several  organs  of  government 
each  acting  within  its  own  sphere.  These  organs  may 
by  such  action  create  a  body  of  usage  which,  when  well 
settled,  will  practically  supplement  the  defects  of  the 
constitution,  as  statutes  will  do  in  like  manner,  so  far  as 
they  are  passed  to  cover  the  omitted  cases. 

The  third  class  consists  not  of  omissions  but  of  matters 
which  are  referred  to  by  the  constitution,  but  in  terms 
whose  meaning  is  doubtful.  Here  the  question  is  what 
interpretation  is  to  be  given  to  its  words  by  the  authority 
entitled  to  interpret,  that  authority  being  in  some  coun- 
tries the  legislature,  in  others  the  judicial  tribunals.  To 
the  subject  of  Interpretation  I  shall  presently  return. 
Meantime,  it  must  be  noted  that  both  Legislation  and 
Usage  in  filling  up  the  vacant  spaces  in  the  constitution, 
and  Interpretation  in  explaining  its  application  to  a 
series  of  new  cases  as  they  arise  upon  points  not  ex- 
pressly covered  by  its  words,  expand  and  develop  a  con- 


FLLMIILI:  AM)  main  OON8TITVTIOX8  187 

stitution,  and  may  make  it  after  a  long  interval  of  time 
different  from  what  it  seemed  to  be  to  those  who  watched 
its  infancy.  The  statutes,  usages,  and  explanations  afore- 
said will  in  fact  come  to  form  a  sort  of  fringe  to  the  con- 
stitution, cohering  with  it,  and  possessing  practically  the 
same  legal  authority  as  its  express  words  have.  And  it 
thus  may  happen  that  (as  in  the  United  States)  a  large 
mass  of  parasitic  law  grows  up  round  the  document  or 
documents  which  contain  the  Constitution.  Nevertheless 
there  will  still  remain  a  distinction  between  this  parasitic 
law  and  usage  and  the  provisions  of  the  constitution 
itself.  The  latter  stand  unchangeable,  save  by  constitu- 
tional amendment.  Statutes,  on  the  other  hand,  can  be 
changed  by  the  legislature ;  usage  may  take  a  new  direc- 
tion; the  decisions  given  interpreting  the  constitution 
may  be  recalled  or  varied  by  the  authority  that  pro- 
nounced them.  All  these  are  in  fact  Flexible  parasites 
growing  upon  a  Rigid  stem.  Thus  it  will  be  seen  that  the 
apparent  definiteness  and  simplicity  of  Documentary 
Constitutions  may  in  any  given  case  be  largely  qualified 
by  the  growth  of  a  mass  of  quasi-constitutional  matter 
which  has  to  be  known  before  the  practical  working  of 
the  constitution  can  be  understood. 

XII.    THE  STABILITY  OF  RIGID  CONSTITUTIONS. 

The  stability  of  a  constitution  is  an  object  to  be  much 
desired  both  because  it  inspires  a  sense  of  security  in  the 
minds  of  the  citizens,  encouraging  order,  industry  and 
thrift,  and  because  it  enables  experience  to  be  accumu- 
lated whereby  the  practical  working  of  the  constitution 
may  be  improved.  Political  institutions  are  under  all 
circumstances  difficult  to  work,  and  when  they  are  fre- 
quently changed,  the  nation  does  not  learn  how  to  work 
them  properly.  Experiment  is  the  soul  of  progress,  but 
experiments  must  be  allowed  a  certain  measure  of  time. 
The  plant  will  not  grow  if  men  frequently  uncover  the 
roots  to  see  how  they  are  striking.  Constitutions  em- 


188  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

bodied  in  one  legal  document  and  unchangeable  by  the 
legislature,  are  intended  to  be,  and  would  seem  likely 
to  be,  peculiarly  durable.  Being  definite,  they  do  not 
give  that  opening  to  small  deviations  and  perversions 
likely  to  arise  from  the  vagueness  of  a  Flexible  or  '  un- 
written '  Constitution,  or  from  the  probable  discre- 
pancies between  the  different  laws  and  traditions  of 
which  it  consists.  They  may  be  battered  down,  but  they 
cannot  easily  (save  by  a  method  to  be  presently  ex- 
amined) be  undermined.  When  an  attack  is  made  upon 
them,  whether  by  executive  acts  violating  their  provi- 
sions, or  by  the  passing  of  statutes  inconsistent  with 
those  provisions,  such  an  attack  can  hardly  escape  obser- 
vation. It  is  a  plain  notice  to  the  defenders  of  the  consti- 
tution to  rally  and  to  stir  up  the  people  by  showing  the 
mischief  of  an  insidious  change.  The  principles  on  which 
the  government  rests,  being  set  forth  in  a  broad  and 
simple  form,  obtain  a  hold  upon  the  mind  of  the  com- 
munity, which,  if  it  has  been  accustomed  to  give  those 
principles  a  general  approval,  will  be  unwilling  to  see 
them  tampered  with.  Moreover  the  process  prescribed 
for  amendment  interposes  various  delays  and  formalities 
before  a  change  can  be  carried  through,  pending  which 
the  people  can  reconsider  the  issues  involved,  and  recede, 
if  they  think  fit,  from  projects  that  may  have  at  first 
attracted  them.  Both  in  Switzerland  and  in  the  States 
of  the  American  Union  it  has  repeatedly  happened  that 
constitutional  amendments  prepared  and  approved  by 
the  legislature  have  been  rejected  by  the  people,  not 
merely  because  the  mass  of  the  people  are  often  more 
conservative  than  their  representatives,  or  are  less  ame- 
nable to  the  pressure  of  particular  '  interests  '  or  sections 
of  opinion,  but  because  fuller  discussion  revealed  objec- 
tions whose  weight  had  not  been  appreciated  when  the 
proposal  first  appeared.  In  these  respects  the  Rigid 
Constitution  has  real  elements  of  stability. 

Nevertheless  it  may  be  really  less  stable  than  it  ap- 
pears, for  there  is  in  its  rigidity  an  element  of  danger. 


FLEX  1  III.  i:   AM)    If  Hi  in   CONSTITUTIONS  189 

It  has  already  been  noted  that  a  constitution  of  the 
Flexible  type  finds  safety  in  the  elasticity  which  enables 
it  to  be  stretched  to  meet  some  passing  emergency,  and 
then  to  resume  its  prior  shape,  and  that  it  may  disarm 
revolution  by  meeting  revolution  half-way.  This  is  just 
what  the  Rigid  Constitution  cannot  do.  It  is  constructed, 
if  I  may  borrow  a  metaphor  from  mechanics,  like  an  iron 
railway-bridge,  built  solidly  to  resist  the  greatest  amount 
of  pressure  by  wind  or  water  that  is  likely  to  impinge 
upon  it.  If  the  materials  are  sound  and  the  workmanship 
good,  the  bridge  resists  with  apparent  ease,  and  perhaps 
without  showing  signs  of  strain  or  displacement,  up  to 
the  highest  degree  of  pressure  provided  for.  But  when 
that  degree  has  been  passed,  it  may  break  suddenly  and 
utterly  to  pieces,  as  the  old  Tay  Bridge  did  under  the 
storm  of  December,  1879.  The  fact  that  it  is  very  strong 
and  all  knit  tightly  into  one  fabric,  while  enabling  it  to 
stand  firm  under  small  oscillations  or  disturbances,  may 
aggravate  great  ones.  For  just  as  the  whole  bridge 
collapses  together,  so  the  Rigid  Constitution,  which  has 
arrested  various  proposed  changes,  may  be  overthrown 
by  a  popular  tempest  which  has  gathered  strength  from 
the  very  fact  that  such  changes  were  not  and  under  the 
actual  conditions  of  politics  could  not  be  made  by  way 
of  amendment.  When  a  party  grows  up  clamouring  for 
some  reforms  which  can  be  effected  only  by  changing 
the  constitution,  or  when  a  question  arises  for  dealing 
with  which  the  constitution  provides  no  means,  then, 
if  the  constitution  cannot  be  amended  in  the  legal  way, 
because  the  legally  prescribed  majority  cannot  be  ob- 
tained, the  discontent  that  was  debarred  from  any  legal 
outlet  may  find  vent  in  a  revolution  or  a  civil  war.  The 
history  of  the  Slavery  question  in  the  United  States  il- 
lustrates this  danger  on  so  grand  a  scale  that  no  other 
illustration  is  needed.  The  Constitution  of  1787,  while 
recognizing  the  existence  of  slavery,  left  sundry  ques- 
tions, and  in  particular  that  of  the  extension  of  slavery 
into  new  territories  and  States,  unsettled.  Thirty  years 


190  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

later  these  matters  became  a  cause  of  strife,  and  after 
another  thirty  years  this  strife  became  so  acute  as  to 
threaten  the  peace  of  the  country.  Both  parties  claimed 
that  the  Constitution  was  on  their  side.  Had  there  been 
no  Constitution  embodied  in  an  instrument  difficult  of 
change,  or  had  it  been  practicable  to  amend  the  Consti- 
tution, so  that  the  majority  in  Congress  could  have  had, 
at  an  earlier  stage,  a  free  hand  in  dealing  with  the  ques- 
tion, it  is  possible — though  no  one  can  say  that  it  is 
certain — that  the  War  of  Secession  might  have  been 
averted.  So  much  may  at  any  rate  be  noted  that  the  Con- 
stitution, which  was  intended  to  hold  the  whole  nation 
together,  failed  to  do.  There  might  no  doubt  in  any 
case  have  been  armed  strife,  as  there  was  in  England 
under  its  Flexible  Constitution  in  1641.  But  it  is  at  least 
equally  probable  that  the  slave-holding  party,  which  saw 
its  hold  on  the  government  slipping  away,  hardened  its 
heart  because  it  held  that  it  was  the  true  exponent 
of  the  Constitution,  and  because  the  Constitution  made 
compromise  more  difficult  than  it  need  have  been  in  a 
country  possessing  a  fully  sovereign  legislature. 

Two  opposing  tendencies  are  always  at  work  in  coun- 
tries ruled  by  these  Constitutions,  the  one  of  which  tends 
to  strengthen,  the  other  to  weaken  them.  The  first  is 
the  growth  of  the  respect  for  the  Constitution  which 
increasing  age  brings.  The  remark  is  often  made  that  if 
husband  and  wife  do  not  positively  dislike  one  another, 
and  if  their  respective  characters  do  not  change  under 
ill-health  or  misfortune,  every  year  makes  them  like  one 
another  better.  They  may  not  have  been  warmly  at- 
tached at  first,  but  the  memories  of  past  efforts  and 
hardships,  as  well  as  of  past  enjoyments,  endear  them 
more  and  more  to  one  another,  and  even  if  jars  and 
bickerings  should  unhappily  recur  from  time  to  time, 
the  strength  of  habit  renders  each  necessary  to  the  other, 
and  makes  that  final  severance  which,  at  moments  of 
exasperation,  they  may  possibly  have  contemplated  with 
equanimity,  a  severe  blow  when  it  arrives.  So  a  nation, 


/•/,/•;  A //>•/,/•:  .\.\it  in<;ii>  CONSTITI  TIONS  i'Ji 

though  not  contented  with  its  Constitution,  and  vexed 
by  quarrels  over  parts  of  it,  may  grow  fond  of  it  simply 
because  it  has  lived  with  it,  has  obtained  a  measure  of 
prosperity  under  it,  has  perhaps  been  wont  to  flaunt  its 
merits  before  other  nations,  and  to  toast  it  at  public 
festivities.  The  magic  of  self-love  and  self-complacency 
turns  even  its  meaner  parts  to  gold,  while  imaginative 
reverence  for  the  past  lends  it  a  higher  sanction.  This 
is  one  way  in  which  Time  may  work.  But  Time  also 
works  against  it,  for  Time,  in  changing  the  social  and 
material  condition  of  a  people,  makes  the  old  political 
arrangements  as  they  descend  from  one  generation  to 
another  a  less  adequate  expression  of  their  political 
needs.  Nobody  now  discusses  the  old  problem  of  the 
Best  Form  of  Government,  because  everybody  now  ad- 
mits that  the  chief  merit  of  any  form  is  to  be  found  in  its 
suitability  to  the  conditions  and  ideas  of  those  among 
whom  it  prevails.  Now  if  the  conditions  of  a  country 
change,  if  the  balance  of  power  among  classes,  the 
dominant  ideas  of  reflective  men,  the  distribution  of 
wealth,  the  sources  whence  wealth  flows,  the  duties  ex- 
pected from  the  administrative  departments  of  govern- 
ment, all  become  different,  while  the  form  and  constitu- 
tionally-prescribed methods  of  government  remain  un- 
modified, it  is  clear  that  flaws  in  the  Constitution  will  be 
revealed  which  were  previously  unseen,  and  problems 
will  arise  with  which  its  arrangements  cannot  cope. 
The  remedy  is  of  course  to  amend  the  Constitution. 
But  that  is  just  what  may  be  impossible,  because  the 
requisite  majority  may  be  unattainable ;  and  the  oppo- 
nents of  amendment,  entrenched  behind  the  ramparts  of 
an  elaborate  procedure,  may  succeed  in  averting  changes 
which  the  safety  of  the  community  demands.  The  pro- 
visions that  were  meant  to  give  security  may  now  be 
dangerous,  because  they  stand  in  the  way  of  natural 
development. 

Even  where  no  strong  party  interest  is  involved  it 
may  be  hard  to  pass  the  amendments  needed.  The  his- 


102  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

tory  of  the  United  States  again  supplies  a  case  in  point. 
Two  defects  in  its  Constitution  are  admitted  by  most 
political  thinkers.  One  is  the  absence  of  power  to  estab- 
lish a  uniform  law  of  marriage  and  divorce  over  the 
whole  Union.  The  other  is  the  method  of  conducting 
the  election  of  a  President,  a  method  which  in  1876 
brought  the  country  to  the  verge  of  civil  war,  and  may 
fcvery  four  years  involve  the  gravest  risks.  Yet  it  has 
been  found  impossible  to  procure  any  amendment  on 
either  point,  because  an  enormous  force  of  united  public 
opinion  is  needed  to  ensure  the  concurrence  of  two- 
thirds  of  both  Houses  of  Congress  and  three-fourths  of 
the  States.  The  first  of  these  two  changes  excites  no 
sufficient  interest  among  politicians  to  make  them  care 
to  deal  with  it.  The  second  is  neglected,  because  no  one 
has  a  clear  view  of  what  should  be  substituted,  and 
neither  party  feels  that  it  has  more  to  gain  than  has  the 
other  by  grappling  with  the  problem. 

A  historical  comparison  of  the  two  types  as  regards 
the  smoothness  of  their  working,  and  the  consequent 
tendency  of  one  or  other  to  secure  a  quiet  life  to  the 
State,  yields  few  profitable  results,  because  the  circum- 
stances of  different  nations  are  too  dissimilar  to  enable 
close  parallels  to  be  drawn,  and  because  much  depends 
upon  the  skill  with  which  the  provisions  of  each  particu- 
lar instrument  have  been  drawn  and  upon  the  greater  or 
less  particularity  of  those  provisions.  The  present  Con- 
stitution of  France,  for  instance,  is  contained  in  two 
very  short  and  simple  documents,  which  determine  only 
the  general  structure  of  the  government,  and  are  in  size 
not  one-twentieth  of  the  Federal  Constitution  of  Switzer- 
land. Hence  it  follows  that  a  far  freer  play  is  left  to  the 
legislature  and  executive  in  France  than  in  Switzerland ; 
and  that  these  two  authorities  have  in  the  former  State 
more  power  of  meeting  any  change  in  the  conditions  of 
the  country,  and  also  more  power  of  doing  harm  by 
hasty  and  unwise  action,  than  is  permitted  in  the  latter. 
As  Adaptability  is  the  characteristic  merit  and  insecurity 


FLEXIBLE  AMJ  IflOID  CONSTITUTIONS  193 

the  characteristic  defect  of  a  Flexible  Constitution,  so 
the  drawback  which  corresponds  to  the  Durability  of 
the  Rigid  is  its  smaller  capacity  for  meeting  the  changes 
and  chances  of  economic,  social  and  political  conditions. 
A  provision  strictly  defining  the  structure  of  the  govern- 
ment may  prevent  the  evolution  of  a  needed  organ.  A 
prohibition  debarring  the  legislature  from  passing  cer- 
tain kinds  of  measures  may  prove  unfortunate  when 
a  measure  of  that  kind  would  be  the  proper  remedy. 
Every  security  has  its  corresponding  disadvantage. 

XIII.  THE  INTERPRETATION  OF  RIGID  CONSTITUTIONS. 

A  well-drawn  Rigid  Constitution  will  confine  itself  to 
essentials,  and  leave  many  details  to  be  filled  in  subse- 
quently by  ordinary  legislation  and  by  usage.  But  (as 
already  observed)  even  the  best-drawn  instrument  is  sure 
to  have  omitted  some  things  which  ought  to  have  been 
expressly  provided  for,  to  have  imposed  restrictions 
which  will  prove  inconvenient  in  practice,  to  contain 
provisions  which  turn  out  to  be  susceptible  of  different 
interpretations  when  cases  occur  raising  a  point  to  which 
the  words  of  those  provisions  do  not  seem  to  be  directly 
addressed.  When  any  of  these  things  happen,  the  autho- 
rities, legislative  and  executive,  who  have  to  work  the 
Constitution  find  themselves  in  a  difficulty.  Steps  seem 
called  for  which  the  Constitution  either  does  not  give 
power  to  do,  or  forbids  to  be  done,  or  leaves  in  such 
doubt  as  to  raise  scruples  and  controversies.  The  autho- 
rities, or  the  nation  itself,  have  then  three  alternative 
courses  open  to  them.  The  first  is  to  submit  to  the  re- 
strictions which  the  Constitution  imposes,  and  abandon 
a  contemplated  course  of  action,  though  the  public  in- 
terest demands  it.  This  is  disagreeable,  but  if  the  case  is 
not  urgent,  may  be  the  best  course,  though  it  tends  to  the 
disparagement  of  the  Constitution  itself.  The  second 
course  is  to  amend  the  Constitution :  and  it  is  obviously 
the  proper  one,  if  it  be  possible.  But  it  may  be  practically 
13 


194  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

impossible,  because  the  procedure  for  passing  an  amend- 
ment may  be  too  slow,  the  need  for  action  being  urgent, 
or  because  the  majority  that  can  be  secured  for  amend- 
ment, even  if  large,  may  be  smaller  than  the  Constitution 
prescribes.  The  only  remaining  expedient  is  that  which 
is  euphemistically  called  Extensive  Interpretation,  but 
may  really  amount  to  Evasion.  Evasion,  pernicious  as 
it  is,  may  give  a  slighter  shock  to  public  confidence  than 
open  violation,  as  some  have  argued  that  equivocation 
leaves  a  man's  conscience  less  impaired  for  future  use 
than  does  the  telling  of  a  downright  falsehood.  Cases 
occur  in  which  the  Executive  or  the  Legislature  profess 
to  be  acting  under  the  Constitution,  when  in  reality 
they  are  stretching  it,  or  twisting  it,  i.e.  are  putting  a 
forced  construction  upon  its  terms,  and  affecting  to 
treat  that  as  being  lawful  under  its  terms  which  the 
natural  sense  of  the  terms  does  not  justify.  The  ques- 
tion follows  whether  such  an  evasion  will  be  held  legal, 
i.e.  whether  acts  done  in  virtue  of  such  a  forced  construc- 
tion as  aforesaid  will  be  deemed  constitutional,  and  will 
bind  the  citizens  as  being  legally  done.  This  will  evi- 
dently depend  on  a  matter  we  have  not  yet  considered, 
but  one  of  profound  importance,  viz.  the  authority 
in  whom  is  lodged  the  right  of  interpreting  a  Rigid 
Constitution. 

On  this  point  there  is  a  remarkable  diversity  of  theory 
and  practice  between  countries  which  follow  the  English 
and  countries  which  follow  the  Roman  law.  The  English 
attribute  the  right  to  the  Judiciary.  As  a  constitutional 
instrument  is  a  law,  distinguished  from  other  laws  only 
by  its  higher  rank,  principle  suggests  that  it  should,  like 
other  laws,  be  interpreted  by  the  legal  tribunals,  the  last 
word  resting,  as  in  other  matters,  with  the  final  Court  of 
Appeal.  This  principle  of  referring  to  the  Courts  all 
questions  of  legal  interpretation  may  be  said  to  be  in- 
herent in  the  English  Common  Law,  and  holds  the  field 
in  all  countries  whose  systems  are  built  upon  the  founda- 
tion of  that  Common  Law.  In  particular,  it  holds  good 


r Li: MULE  AND   RIQID   CONSTITUTIONS  195 

in  the  United  Kingdom  and  in  the  United  States.  As  the 
British  Parliament  can  alter  any  part  of  the  British 
Constitution  at  pleasure,  the  principle  is  of  secondary 
political  importance  in  England,  for  when  any  really 
grave  question  arises  on  the  construction  of  a  constitu- 
tional law  it  is  dealt  with  by  legislation.  However,  the 
action  of  the  Courts  in  construing  the  existing  law  is 
watched  with  the  keenest  interest  when  questions  arise 
which  the  Legislature  refuses  to  deal  with,  such,  for 
instance,  as  those  that  affect  the  doctrine  and  discipline 
of  the  Established  Church.  So  in  the  seventeenth  cen- 
tury, when  constitutional  questions  were  at  issue  between 
the  King  and  the  House  of  Commons,  which  it  was  im- 
possible to  settle  by  statute,  because  the  king  would 
have  refused  consent  to  bills  passed  by  the  Commons, 
the  power  of  the  Judges  to  declare  the  rules  of  the 
ancient  Constitution  was  of  great  significance.  In  the 
United  States,  where  Congress  cannot  alter  the  Con- 
stitution, the  function  of  the  Judiciary  to  interpret  the 
will  of  the  people  as  set  forth  in  the  Constitution  has 
attained  its  highest  development.  The  framers  of  that 
Constitution  perhaps  scarcely  realized  what  the  effect 
of  their  arrangements  would  be.  More  than  ten  years 
passed  before  any  case  raised  the  point;  and  when  the 
Supreme  Court  declared  that  an  Act  of  Congress  might 
be  invalid  because  in  excess  of  the  power  granted  by 
the  Constitution,  some  surprise  and  more  anger  were 
expressed.  The  reasoning  on  which  the  Court  proceeded 
was,  however,  plainly  sound,  and  the  right  was  therefore 
soon  admitted.  Canada  and  Australia  have  followed  the 
English  doctrine,  so  the  Bench  has  a  weighty  function 
under  the  constitutions  of  both  those  Federations. 

On  the  European  Continent  a  different  view  prevails, 
and  the  Legislature  is  held  to  be  the  judge  of  its  own 
powers  under  the  Constitution,  so  that  no  Court  of  law 
may  question  the  authority  of  a  statute  passed  in  due 
form.  Such  is  the  rule  in  Switzerland.  There,  as  in 
most  parts  of  the  European  Continent,  the  separation  of 


196  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

the  Judiciary  from  the  other  two  powers  has  been  less 
complete  than  in  England,  and  the  deference  to  what 
Englishmen  and  Americans  call  the  Rule  of  Law  less 
profound.  The  control  over  governmental  action  which 
the  right  of  interpretation  implies  seems  to  the  Swiss 
too  great,  and  too  political  in  its  nature,  to  be  fit  for  a 
legal  tribunal.  It  is  therefore  vested  in  the  National 
Assembly,  which  when  a  question  is  raised  as  to  the  con- 
stitutionality, of  a  Federal  Statute  or  Executive  Act,  or 
as  to  the  transgression  of  the  Federal  Constitution  by  a 
Cantonal  Statute,  is  recognized  as  the  authority  com- 
petent to  decide.  The  same  doctrine  seems  to  prevail  in 
the  German  Empire,  though  the  point  is  there  not  quite 
free  from  doubt,  and  also  in  the  Austrian  Monarchy,  in 
France,  and  in  Belgium.  In  the  Orange  Free  State,  liv- 
ing under  Roman-Dutch  law,  the  Bench,  basing  itself  on 
American  precedents,  claimed  the  right  of  authoritative 
interpretation,  but  the  Legislature  hesitated  to  admit  it. 

American  lawyers  conceive  that  the  strength  and  value 
of  a  Rigid  Constitution  are  greatly  reduced  when  the 
Legislature  becomes  the  judge  of  its  own  powers,  en- 
titled after  passing  a  statute  which  really  transgresses 
the  Constitution  to  declare  that  the  Constitution  has  in 
fact  not  been  transgressed.  The  Swiss,  however,  deem 
the  disadvantages  of  the  American  method  still  more 
serious,  for  they  hold  that  it  gives  the  last  word  to  the 
judges,  persons  not  chosen  for  or  fitted  for  such  a  func- 
tion, and  they  declare  that  in  point  of  fact  public  opinion 
and  the  traditions  of  their  government  prevent  the  power 
vested  in  their  National  Assembly  from  being  abused. 
And  it  must  be  added  that  the  Americans  have  so  far 
felt  the  difficulty  which  the  Swiss  dwell  on,  that  the 
Supreme  Court  has  refused  to  pronounce  upon  the  ac- 
tion of  Congress  in  '  purely  political  cases,'  i.  e.  cases 
where  the  arguments  used  to  prove  or  disprove  the  con- 
formity to  the  Constitution  of  the  action  taken  by  Con- 
gress are  of  a  political  nature. 

Returning  to  the  question  of  legislative  action  alleged 


197 

to  transgress  the  Constitution,  it  is  plain  that  if  the 
Legislature  be,  as  in  Switzerland,  the  arbiter  of  its  own 
powers,  so  that  the  validity  of  its  acts  cannot  be  ques- 
tioned in  a  court  of  law,  there  is  no  further  difficulty.  But 
where  that  validity  can  be  challenged,  as  in  the  United 
States,  it  might  be  supposed  that  every  unconstitutional 
statute  will  be  held  null,  and  that  thus  any  such  stretch- 
ing or  twisting  of  the  Constitution  as  has  been  referred 
to  will  be  arrested.  But  experience  has  shown  that  where 
public  opinion  sets  strongly  in  favour  of  the  line  of  con- 
duct which  the  Legislature  has  followed  in  stretching 
the  Constitution,  the  Courts  are  themselves  affected  by 
that  opinion,  and  go  as  far  as  their  legal  conscience  and 
the  general  sense  of  the  legal  profession  permit — pos- 
sibly sometimes  even  a  little  farther — in  holding  valid 
what  the  Legislature  has  done.  This  occurs  most  fre- 
quently where  new  problems  of  an  administrative  kind 
present  themselves.  The  Courts  recognize,  in  fact,  that 
'  principle  of  development '  which  is  potent  in  politics  as 
well  as  in  theology.  Human  affairs  being  what  they  are, 
there  must  be  a  loophole  for  expansion  or  extension  in 
some  part  of  every  scheme  of  government;  and  if  the 
Constitution  is  Rigid,  Flexibility  must  be  supplied  from 
the  minds  of  the  Judges.  Instances  of  this  kind  have 
occurred  in  the  United  States,  as  when  some  twenty 
years  ago  the  Supreme  Court  recognized  a  power  in  a 
State  Legislature  to  deal  with  railway  companies  not 
consistent  with  the  opinions  formerly  enounced  by  the 
Court,  though  they  disclaimed  the  intention  of  over- 
ruling those  opinions  l. 

1  A  still  more  remarkable  instance  has  been  furnished,  while  these  pages  are 
passing  through  the  press  (June,  1901),  by  the  decisions  of  the  Supreme  Court  of 
the  United  States  in  the  group  of  cases  which  arose  out  of  questions  relating  to 
the  applicability  of  the  Federal  Constitution  to  the  island  of  Puerto  Rico,  recently 
ceded  by  Spain  to  the  United  States.  The  Court  had  to  deal  with  a  constitutional 
question  raising  large  issues  of  national  policy  regarding  the  application  of  the 
Federal  Constitution  to  territories  acquired  by  conquest  and  treaty:  and  its  judge- 
ments in  these  cases  (given  in  every  case  by  majorities  only)  have  expanded  the 
Constitution,  i.e.  have  declared  it  to  have  a  meaning  which  may  well  be  its  true 
meaning,  but  which  was  not  previously  ascertained,  and  certainly  by  many  lawyers 
not  admitted,  to  be  its  true  meaning. 


198  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

Does  not  a  danger  lurk  in  this?  May  not  a  majority 
in  the  Legislature,  if  and  when  they  have  secured  the 
concurrence,  honest  or  dishonest,  of  the  Judiciary,  prac- 
tically disregard  the  Constitution  ?  May  not  the  Execu- 
tive conspire  with  them  to  manipulate  places  on  the 
highest  Court  of  Appeal,  so  as  to  procure  from  it  such 
declarations  of  the  meaning  of  the  Constitution  as  the 
conspiring  parties  desire?  May  not  the  Constitution 
thus  be  slowly  nibbled  away?  Certainly.  Such  things 
may  happen.  It  is  only  public  opinion  and  established 
tradition  that  will  avail  to  prevent  them.  But  it  is  upon 
public  opinion,  moulded  by  tradition,  that  all  free  govern- 
ments must  in  the  last  resort  rely. 

XIV.    DEMOCRACIES  AND  RIGID  CONSTITUTIONS. 

The  mention  of  traditions,  that  is  to  say  of  the  mental 
and  moral  habits  of  judgement  which  a  nation  has 
formed,  and  which  guide  its  political  life,  as  the  habits  of 
each  one  of  us  guide  his  individual  life,  suggests  an  in- 
quiry as  to  the  effect  of  Documentary  Constitutions  on 
the  ideas  and  habits  of  those  who  live  under  them.  I  will 
not  venture  on  broad  generalizations,  because  it  is  hard 
to  know  how  much  should  be  assigned  to  the  racial  ten- 
dencies of  a  nation,  how  much  to  the  circumstances  of  its 
history,  how  much  to  its  institutions.  But  the  cases  of 
Switzerland  and  the  United  States  seem  to  show  that  the 
tendency  of  these  instruments  is  to  foster  a  conservative 
temper.  The  nation  feels  a  sense  of  repose  in  the  settled 
and  permanent  form  which  it  has  given  to  its  govern- 
ment. It  is  not  alarmed  by  the  struggles  of  party  in  the 
legislature,  because  aware  that  that  body  cannot  disturb 
the  fundamental  institutions.  Accordingly  it  will  often, 
contracting  a  dislike  to  change,  negative  the  amendments 
which  the  legislature  submits  to  it.  This  happens  in 
Switzerland,  as  already  observed ;  and  the  people  of  the 
United  States,  though  liable  to  sudden  and  violent  waves 
of  political  opinion,  show  so  little  disposition  to  innovate 


ru-:\inu:  AM>  IIKUD  CONSTITUTIONS  1^9 

that  Congress  has  not  proposed  any  amendments  to  the 
State  Legislatures  since  1870  l.  I  may  be  reminded  that 
the  Constitutions  of  the  several  States  of  the  Union  are 
frequently  recast  or  amended  in  detail.  This  is  true,  but 
the  cause  lies  not  so  much  in  a  restless  changef'ilness  as 
in  the  low  opinion  entertained  of  the  State  Legislatures. 
The  distrust  felt  for  these  bodies  induces  the  people  to 
take  a  large  part  of  what  is  really  ordinary  legislation 
out  of  their  hands,  and  to  enact  themselves,  in  a  form  of  a 
Constitution,  the  laws  they  wish.  State  Constitutions 
now  contain  many  regulations  on  matters  of  detail,  and 
have  thus,  in  most  States,  ceased  to  be  considered  funda- 
mental instruments  of  government.  To  revise  or  amend 
them  has  become  merely  a  convenient  method  of  direct 
popular  legislation,  similar  to  the  Swiss  Popular  Initia- 
tive and  Referendum.  But  the  fundamental  parts  of 
these  instruments  are  but  slightly  changed. 

In  estimating  the  influence  of  Flexible  Constitutions 
in  forming  the  political  character  of  a  nation,  in  stimu- 
lating its  intelligence  and  training  its  judgement,  it  was 
remarked  that  only  the  governing  class,  a  very  small 
part  of  the  nation  even  in  democratic  countries,  are  di- 
rectly affected.  This  is  less  true  of  a  Rigid  Constitution. 
While  a  Flexible  Constitution  like  the  Roman  or  English 
requires  much  knowledge,  tact  and  courage  to  work  it, 
and  develops  these  qualities  in  those  who  bear  a  part  in 
the  working  of  it,  as  legislators  or  officials  or  magis- 
trates, a  Rigid  Constitution  tends  rather  to  elicit  in- 
genuity, subtlety  and  logical  acumen  among  the  corre- 
sponding class  of  persons.  It  is  apt  to  give  a  legal  cast 
to  most  questions,  and  sets  a  high,  perhaps  too  high, 
premium  on  legal  knowledge  and  legal  capacity.  But  it 
goes  further.  It  affects  a  much  larger  part  of  the  com- 
munity than  the  Flexible  Constitution  does.  Few  even 
of  the  governing  class  can  be  expected  to  understand  the 
latter.  The  average  Roman  voter  in  the  comitia  in  the 

1  Something  must,  however,  be  allowed  for  the  provisions  which  require  large 
majorities  for  any  amendment  of  the  Constitution. 


200  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

days  of  Cicero,  like  the  average  English  voter  at  the 
polls  to-day,  probably  knew  but  little  about  the  legal 
structure  of  the  government  he  lived  under.  But  the 
average  Swiss  voter,  like  the  average  native  American 
voter  (for  the  recent  immigrant  is  a  different  sort  of 
creature),  understands  his  government,  can  explain  it, 
and  has  received  a  great  deal  of  education  from  it. 
Talk  to  a  Swiss  peasant  in  Solothurn  or  Glarus,  and 
you  will  be  astonished  at  his  mastery  of  principles  as 
well  as  his  knowledge  of  details.  Very  likely  he  has 
a  copy  of  the  Federal  Constitution  at  home.  He  has 
almost  certainly  learnt  it  at  school.  It  disciplines  his 
mind  much  as  the  Shorter  Catechism  trained  the  Presby- 
terian peasantry  of  Scotland.  As  there  is  no  mystery 
about  a  scheme  of  government  so  set  forth,  it  may  be 
thought  that  he  will  have  little  reverence  for  that 
which  he  comprehends.  It  is,  however,  his  own.  He 
feels  himself  a  part  of  the  Government,  and  seems 
to  be  usually  imbued  with  a  respect  even  for  the  letter 
of  the  instrument,  a  wholesome  feeling,  which  helps 
to  form  that  law-abiding  spirit  which  a  democracy 
needs. 

A  documentary  Constitution  appears  to  the  people  as 
the  immediate  outcome  of  their  power,  the  visible  image 
of  their  sovereignty.  It  is  commended  by  a  simplicity 
which  contrasts  favourably  with  the  obscure  technicali- 
ties of  an  old  common  law  Constitution.  The  taste  of 
the  multitude,  and  especially  of  that  class  which  out- 
numbers all  other  classes,  the  thinly-educated  persons 
whose  book-knowledge  is  drawn  from  dry  manuals  in 
mechanically-taught  elementary  schools, and  who  in  after 
life  read  nothing  but  newspapers,  or  penny  weeklies,  or 
cheap  novels — the  taste  of  this  class,  and  that  not  merely 
in  Europe  but  perhaps  even  more  in  the  new  countries, 
such  as  Western  America  and  the  British  Colonies,  is 
a  taste  for  ideas  level  with  their  comprehension,  senti- 
ments which  need  no  subtlety  to  be  appreciated,  pro- 
positions which  can  be  expressed  in  unmistakable  posi- 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  201 

tives  and  negatives.  Thus  the  democratic  man  (as  Plato 
would  call  him)  is  pleased  to  read  and  know  his  Con- 
stitution for  himself.  The  more  plain  and  straight- 
forward it  is  the  better,  for  so  he  will  not  need  to  ask 
explanations  from  any  one  more  skilled.  And  a  good 
reason  for  this  love  of  plainness  and  directness  may  be 
found  in  the  fact  that  the  twilight  of  the  older  Consti- 
tutions permitted  abuses  of  executive  power  against 
which  the  express  enactments  of  a  Rigid  Constitution 
protect  the  people.  Magna  Charta,  the  Bill  of  Rights, 
the  Twelve  Tables,  were  all  fragments,  or  rather  instal- 
ments, of  such  a  Constitution,  rightly  dear  to  the  com- 
mons, for  they  represented  an  advance  towards  liberty 
and  order1. 

The  theory  of  democracy  assumes  that  the  multitude 
are  both  competent  and  interested ;  competent  to  under- 
stand the  structure  of  their  government  and  their  own 
functions  and  duties  as  ultimately  sovereign  in  it,  in- 
terested as  valuing  those  functions,  and  alive  to  the 
responsibility  of  those  duties.  A  Constitution  set  out 
in  black  and  white,  contained  in  a  concise  document 
which  can  be  expounded  and  remembered  more  easily 
than  a  Constitution  growing  out  of  a  long  series  of 
controversies  and  compromises,  seems  specially  fitted 
for  a  country  where  the  multitude  is  called  to  rule.  Only 
memory  and  common  sense  are  needed  to  master  it.  It 
can  lay  down  general  principles  in  a  series  of  broad, 
plain,  authoritative  propositions,  while  in  the  case  of  the 
'  historical  Constitution  '  they  have  to  be  gathered  from 
various  sources,  and  expressed,  if  they  are  to  be  ex- 
pressed correctly,  in  a  guarded  and  qualified  form.  Now 
the  average  man,  if  intelligent  enough  to  comprehend 
politics  at  all,  likes  general  principles.  Even  if,  as  some 
think,  he  overvalues  them,  yet  his  capacity  for  absorbing 
them  gives  him  a  sort  of  comprehension  of  his  govern- 

1  The  '  People's  Charter '  of  1848  was  called  for  as  another  such  onward  step. 
Its  Six  Points  were  to  be  the  basis  of  a  democratic  reconstruction  of  the  govern- 
ment. 


202  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

ment  and  attachment  to  it  which  are  solid  advantages  in 
a  large  democracy. 

Constitutions  of  this  type  have  usually  arisen  when 
the  mass  of  the  people  were  anxious  to  secure  their 
rights  against  the  invasions  of  power,  and  to  construct 
a  frame  of  government  in  which  their  voices  should  be 
sure  to  prevail.  They  furnish  a  valuable  protection  for 
minorities  which,  if  not  liable  to  be  overborne  by  the 
tyranny  of  the  mass,  are  at  any  rate  liable  to  be  dis- 
heartened into  silence  by  superior  numbers,  and  so  need 
all  the  protection  which  legal  safeguards  can  give  them. 
Thus  they  have  generally  been  accounted  as  institutions 
characteristic  of  democracy,  though  the  cases  of  Ger- 
many and  Japan  show  that  this  is  not  necessarily  true. 

A  change  of  view  has,  however,  become  noticeable 
within  the  last  few  years.  In  the  new  democracies  of 
the  United  States  and  the  British  self-governing  Colo- 
nies— and  the  same  thing  is  true  of  popularly  governed 
countries  in  Europe — the  multitude  no  longer  fears 
abuses  of  power  by  its  rulers.  It  is  itself  the  ruler, 
accustomed  to  be  coaxed  and  flattered.  It  feels  no 
need  for  the  protection  which  Rigid  Constitutions  give. 
And  in  the  United  States  it  chafes  under  those  restric- 
tions on  legislative  power,  embodied  in  the  Federal  Con- 
stitution or  State  Constitution  (as  the  case  may  be), 
which  have  surrounded  the  rights  of  property  and  the 
obligation  of  subsisting  contracts  with  safeguards  ob- 
noxious, not  only  to  the  party  called  Socialist,  but  to 
reformers  of  other  types.  As  these  safeguards  are  some- 
times thought  to  prevent  the  application  of  needed 
remedies  and  to  secure  impunity  for  abuses  which  have 
become  entrenched  behind  them,  the  aforesaid  consti- 
tutional provisions  have  incurred  criticism  and  censure 
from  various  sections,  and  many  attempts  have  been 
made  by  State  legislatures,  acting  at  the  bidding  of  those 
who  profess  to  control  the  votes  of  working  men,  to  dis- 
regard or  evade  the  restrictions.  These  attempts  are 
usually  defeated  by  the  action  of  the  Courts,  whence  it 


AM)   lUdlD    CONSTITt  77oA>  203 

happens  that  both  the  Federal  Constitution  and  the  func- 
tions of  the  Judiciary  are  often  attacked  in  the  country 
which  was  so  extravagantly  proud  of  both  institutions 
half  a  century  ago.  This  strife  between  the  Bench  as  the 
defender  of  old-fashioned  doctrines  (embodied  in  the 
provisions  of  a  Rigid  Constitution  (Federal  or  State)) 
and  a  State  Legislature  acting  at  the  bidding  of  a  large 
section  of  the  voters  is  a  remarkable  feature  of  con- 
temporary America. 

The  significance  of  this  change  in  the  tendency  of 
opinion  is  enhanced  when  we  find  that  a  similar  change 
has  been  operative  in  the  opposite  camp.  The  very  con- 
siderations which  have  made  odious  to  some  American 
reformers  those  restrictions  on  popular  power,  behind 
which  the  great  corporations  and  the  so-called  '  Trusts  ' 
(and  capitalistic  interests  generally)  have  entrenched 
themselves,  have  led  not  a  few  in  England  to  applaud  the 
same  restrictions  as  invaluable  safeguards  to  property. 
Realizing,  a  little  late  in  the  day,  that  political  power  has 
in  England  passed  from  the  Few  to  the  Many,  fearing 
the  use  which  the  Many  may  make  of  it,  and  alarmed  by 
the  precedents  which  land  legislation  in  Ireland  has  set, 
they  are  anxious  to  tie  down  the  British  legislature,  while 
yet  there  is  time,  by  provisions  which  shall  prevent  in- 
terference with  a  man's  control  over  what  he  calls  his 
own,  shall  restrict  the  taking  of  private  property  for  pub- 
lic uses,  shall  secure  complete  liberty  of  contracting, 
and  forbid  interference  with  contracts  already  made. 
Others  in  England,  in  their  desire  to  save  political  insti- 
tutions which  they  think  in  danger,  propose  to  arrest 
any  sudden  popular  action  by  placing  those  institutions 
in  a  class  by  themselves,  out  of  the  reach  of  the  regular 
action  of  Parliament.  In  other  words,  the  establishment 
in  Britain  of  a  species  of  Rigid  Constitution  has  begun 
to  be  advocated,  and  advocated  by  the  persons  least  in- 
clined to  trust  democracy.  '  Imagine  a  country  ' — so 
they  argue — '  with  immense  accumulated  wealth,  and  a 
great  inequality  of  fortunes,  a  country  which  rules  a  vast 


204  FLEXIBLE  AND   RWID   CONSTITUTIONS 

and  distant  Empire,  a  country  which  depends  for  her 
prosperity  upon  manufactures  liable  to  be  injured  by 
bad  legislation,  and  upon  a  commerce  liable  to  be  im- 
perilled by  unskilful  diplomacy,  and  suppose  that  such  a 
country  should  admit  to  power  a  great  mass  of  new  and 
untrained  voters,  to  whose  cupidity  demagogues  will 
appeal,  and  upon  whose  ignorance  charlatans  will  prac- 
tise. Will  not  such  a  country  need- something  better  for 
her  security  than  a  complicated  and  delicately-poised 
Constitution  resting  largely  on  mere  tradition,  a  Consti- 
tution which  can  at  any  moment  be  fundamentally  altered 
by  a  majority,  acting  in  a  revolutionary  transient  spirit, 
yet  in  a  perfectly  legal  way  ?  Ought  not  such  a  country 
to  place  at  least  the  foundations  of  her  system  and  the 
vital  principles  of  her  government  out  of  the  reach  of  an 
irresponsible  parliamentary  majority,  making  the  pro- 
cedure for  altering  them  so  slow  and  so  difficult  that 
there  will  be  time  for  the  conservative  forces  to  rally  to 
their  defence  before  any  fatal  changes  can  be  carried 
through  ? ' 

I  refer  to  these  arguments,  which  were  frequently 
heard  in  England  during  some  years  after  the  extension 
of  the  suffrage  in  1884 1,  with  no  intention  of  discuss- 
ing their  soundness,  for  that  belongs  to  politics,  but 
solely  for  the  sake  of  illustrating  how  different  are  the 
aspects  which  the  same  institution  may  come  to  wear. 
A  century  ago  revolutionists  were  the  apostles,  con- 
servatives the  enemies,  of  Rigid  Constitutions.  Even 
forty  years  ago  it  was  the  Flexibility  of  the  historical 
British  Constitution  that  was  its  glory  in  the  eyes  of 
admirers  of  the  British  system,  its  Rigidity  that  was  the 
glory  of  the  American  Constitution  in  the  eyes  of  fervent 
democrats. 

1  They  are  much  less  heard  now  (1900),  partly  because  the  public  mind  is  oc- 
cupied with  matters  of  a  different  order,  partly  because  the  political  party  which 
professes  to  be  opposed  to  innovation  has  latterly  commanded  a  large  majority  in 
the  British  Legislature. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  205 

XV.  THE  FUTURE  OF  THE  FLEXIBLE  AND  RIGID  TYPES. 

A  few  concluding  reflections  may  be  devoted  to  the 
probable  future  of  the  two  types  that  have  been  occu- 
pying our  minds.  Are  both  likely  to  survive?  or  if 
not,  which  of  the  two  will  prevail  and  outlast  the  other  ? 

Two  reasons  suggest  themselves  for  predicting  the 
prevalence  of  the  Rigid  type.  One  is  that  no  new  Flex- 
ible Constitutions  have  been  born  into  the  world  for 
many  years  past,  unless  we  refer  to  this  class  those  of 
some  of  the  British  self-governing  colonies  *.  The  other 
is  that  no  country  now  possessing  a  Rigid  Constitution 
seems  likely  to  change  it  for  a  Flexible  one.  The  foot- 
steps are  all  the  other  way.  Flexible  Constitutions  have 
been  turned  into  Rigid  ones.  No  Rigid  one  has  become 
Flexible  2.  Even  those  who  complain  of  the  undue  con- 
servatism of  the  American  Constitution  do  not  propose 
to  abolish  that  Constitution  altogether,  nor  to  place 
it  at  the  mercy  of  Congress,  but  merely  to  expunge  parts 
of  it,  though  no  doubt  parts  which  (such  as  the  powers 
of  the  Judiciary)  have  been  vital  to  its  working. 

Against  these  two  arguments  may  be  set  the  fact  that 
popular  power  has  in  most  countries  made  great  ad- 
vances, and  does  not  need  the  protection  of  an  instru- 
ment controlling  the  legislature  and  the  executive,  which 
are  already  only  too  eager  to  bend  to  every  breeze  of 
popular  opinion.  If  we  lived  in  a  time  of  small  States,  as 
the  ancients  did,  the  people  would  themselves  legislate  in 
primary  assemblies.  Why  then,  it  may  be  asked,  should 
they  care  to  limit  the  powers  of  legislatures  which  are 
completely  at  their  bidding?  The  old  reasons  for  hold- 
ing legislatures  and  executives  in  check  have  *  disap- 
peared. Why  should  the  people,  safe  and  self-confident, 
impose  a  check  on  themselves?  In  this  there  may  be 

1  The  British  self-governing  Colonies  (except  the  two  great  federations,  see 
ante,  pp.  168-9)  have  constitutions  which  may  be  changed  in  all  or  nearly  all 
points  by  their  respective  legislatures,  but  they  are  not  independent  States,  and 
the  power  of  the  legislatures  to  alter  the  constitutions  is  therefore  not  complete. 

9  The  Constitution  of  Italy,  already  referred  to,  is  scarcely  an  exception. 


206  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

some  truth.  But  it  must  be  remembered  that  since 
modern  States  are  larger  than  those  of  former  times, 
and  tend  to  grow  larger  by  the  absorption  of  the  small 
ones,  legislatures  are  necessary,  for  business  could  not 
be  carried  on  by  primary  popular  assemblies,  even  with 
the  aid  of  '  plebiscites.'  Now  legislatures  are  nowhere 
rising  in  the  respect  and  confidence  of  the  people,  and  it 
is  therefore  improbable  that  any  nation  which  has  a 
documentary  Constitution,  holding  its  legislature  in  sub- 
jection, will  abolish  it  for  the  benefit  of  the  legislature, 
although  it  may  wish  to  do  more  and  more  of  its  legisla- 
tion by  the  direct  action  of  the  people,  as  it  does  in 
Switzerland  and  in  some  of  the  States  of  the  American 
Union.  On  the  whole,  therefore,  it  seems  probable  that 
Rigid  Constitutions  will  survive  in  countries  where  they 
already  exist. 

Two  other  questions  remain.  Will  existing  Flexible 
Constitutions  remain?  Are  such  new  States  as  may 
arise  likely  to  adopt  Constitutions  of  the  Rigid  or  of  the 
Flexible  type? 

An  inquiry  whether  countries  which,  like  Hungary 
and  Britain,  now  live  under  ancient  Flexible  Constitu- 
tions will  exchange  them  for  new  documentary  ones 
would  resolve  itself  into  a  general  study  of  the  political 
prospects  of  those  countries.  All  that  can  be  said,  apart 
from  such  a  study,  is  that  our  age  shows  no  such  general 
tendency  to  change  in  this  respect  as  did  the  revolu- 
tionary and  post-revolutionary  era  of  the  first  sixty 
years  of  the  nineteenth  century.  Still,  a  few  lines  may 
be  given  to  considering  whether  any  such  alteration  of 
form  is  likely  to  pass  on  the  Constitution  which  has  long 
had  the  unquestioned  pre-eminence  in  age  and  honour, 
that,  namely,  of  the  United  Kingdom,  which  is  really 
the  ancient  Constitution  of  England  so  expanded  as  to 
include  Scotland  and  Ireland. 

So  far  as  internal  causes  and  forces  are  concerned, 
this  seems  improbable.  The  people  are  not  likely,  de- 
spite the  alarms  felt  and  the  advice  tendered  by  the 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  207 

uneasy  persons  to  whom  reference  has  already  been 
made,  to  part  with  the  free  play  and  elastic  power  of 
their  historical  Cabinet  and  Parliamentary  system.  Eng- 
land has  never  yet  made  any  constitutional  change  either 
on  grounds  of  theory  or  from  a  fear  of  evils  that  might 
arise  in  the  future.  All  the  modifications  of  the  frame  of 
government  have  been  gradual,  and  induced  by  actually 
urgent  needs. 

But  there  is  another  set  of  causes  and  forces  at  work 
which  may,  as  some  think,  affect  the  question.  It  has 
already  been  noted  that  Rigid  Constitutions  have  arisen 
where  States  originally  independent  or  semi-indepen- 
dent have  formed  Confederations.  These  States,  finding 
the  kind  of  connexion  which  treaties  had  created  insuffi- 
cient for  their  needs,  have  united  themselves  into  one 
Federal  State,  and  expressed  their  new  and  closer  rela- 
tion in  the  form  of  a  documentary  Constitution.  Such  a 
Constitution  has  invariably  been  raised  above  the  legis- 
lature it  was  creating,  because  the  States  which  were 
uniting  wished  to  guard  jealously  such  autonomy  as  they 
respectively  retained,  and  would  not  leave  those  rights 
at  the  mercy  of  the  legislature.  This  happened  in  the 
United  States  in  1787-9,  in  Switzerland  after  the  fall  of 
Napoleon,  in  Germany  when  the  North  German  Con- 
federation and  German  Empire  were  created  in  1866 
and  1870-71.  It  has  happened  also  in  Canada  and  in 
Australia. 

Two  proposals  of  a  federalizing  nature  have  recently 
been  made  regarding  the  United  Kingdom,  one  to  split 
it  up  into  a  Federation  of  four  States,  the  other  to  make 
it  a  member  of  a  large  Federation.  Neither  seems 
likely  to  be  carried  out  at  present,  but  both  are  worth 
mentioning,  because  they  illustrate  the  occasions  on 
which,  and  methods  by  which,  constitutions  may  be 
transformed.  The  United  Kingdom  stands  to  its  self- 
governing  Colonies  in  what  is  practically  a  permanent 
alliance  as  regards  all  foreign  relations,  these  relations 
being  managed  by  the  mother  country,  with  complete 


208  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

local  legislative  and  administrative  autonomy  both  for 
each  Colony  and  for  the  mother  country  1.  Many  think 
that  this  alliance  is  not  a  satisfactory,  and  cannot  well 
be  a  permanent,  form  of  connexion,  because  at  present 
almost  the  whole  burden — and  it  is  a  heavy  one — of 
naval  and  military  defence  falls  upon  Britain,  while  the 
Colonies  have  no  share  in  the  control  of  foreign  rela- 
tions, and  may  find  themselves  engaged  in  a  war,  or 
bound  by  a  treaty,  regarding  which  they  have  not  been 
consulted.  Thus  the  idea  has  grown  up  that  some  sort 
of  confederation  ought  to  be  established,  in  which  there 
would  be  a  Federal  Assembly,  containing  representa- 
tives of  the  (at  present  seven)  component  States  2,  and 
controlling  those  matters,  such  as  foreign  relations  and 
a  system  of  military  and  naval  armaments,  which  would 
be  common  to  the  whole  body.  If  this  idea  were  ever 
to  take  practical  shape,  it  would  probably  be  carried  out 
by  a  statute  establishing  a  new  Constitution  for  the  de- 
sired Confederation,  and  creating  the  Federal  Assembly. 
Such  a  statute  would  be  passed  by  the  Parliament  of 
the  United  Kingdom,  and  (being  expressed  to  be  opera- 
tive over  the  whole  Empire)  would  have  full  legal  effect 
for  the  Colonies  as  well  as  for  the  mother  country.  Now 
if  such  a  statute  assigned  to  the  Federal  Assembly  cer- 
tain specified  matters,  as  for  instance  the  control  of 
imperial  defence  and  expenditure  or  (let  us  say)  legisla- 
tion regarding  merchant  shipping  and  copyright,  taking 
them  away  from  the  present  and  future  British  Parlia- 
ment as  well  as  from  the  parliaments  of  the  several 
Colonies,  and  therewith  debarring  the  British  Parlia- 
ment from  recalling  or  varying  the  grant  except  by  the 

1  This  autonomy  is,  however,  not  legally  complete  as  regards  the  Colonies,  for 
the  mother  country  may,  though  she  rarely  does,  disallow  colonial  legislation.    In 
Canada  the  Dominion  Legislature  cannot  affect  the  rights  of  the  several  Pro- 
vinces, the  power  to  do  so  remaining  with  the  Imperial  Parliament  which  passed 
the  Confederation  Act  of  1867.    So  too  under  the  Constitution  of  the  Australian 
Commonwealth  the  rights  of  each  colony  are  protected  by  the  instrument  of 
federation. 

2  Viz.  the  United  Kingdom,  the  two  great  Colonial  Federations  (Canada  and 
Australia),  and  four  comparatively  small  self-governing  Colonies,  viz.  New  Zea- 
land, Cape  Colony,  Natal,  and  Newfoundland. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  209 

consent  of  the  several  Colonies  (or  perhaps  of  the  Fede- 
ral Assembly  itself),  it  is  clear  that  the  now  unlimited 
powers  of  the  British  Parliament  would  have  been  re- 
duced. A  part  of  the  future  British  Constitution  would 
have  been  placed  beyond  its  control:  and  to  that  extent 
the  British  Constitution  would  have  ceased  to  be  a  Flex- 
ible one  within  the  terms  of  the  definition  already  given  1. 
Parliament  would  not  be  fully  sovereign;  and  if  either  the 
British  or  a  Colonial  Parliament  passed  laws  inconsist- 
ent with  statutes  passed  by  the  Federal  Assembly  in 
matters  assigned  to  the  latter,  the  Courts  would  have 
to  hold  the  transgressing  laws  invalid. 

Doubtless,  if  such  a  Federal  Constitution  were  estab- 
lished, a  Supreme  Court  of  Appeal  on  which  some  colo- 
nial judges  should  sit  would  be  thought  essential  to  it, 
and  questions  arising  under  the  Federation  Act  (as  to  the 
extent  of  the  powers  of  the  Federal  Assembly  and  other- 
wise) would  go  before  it,  sometimes  in  the  first  instance, 
sometimes  by  way  of  appeal  from  inferior  Courts. 

The  other  proposal  is  to  turn  the  United  Kingdom 
itself  into  a  Federation  by  erecting  England,  Scotland, 
Ireland,  and  Wales  into  four  States,  each  with  a  local 
legislature  and  ministry  controlling  local  affairs,  while  re- 
taining the  Imperial  Parliament  as  a  Central  or  Federal 
Legislature  for  such  common  affairs  as  belong  in  the 
United  States  to  Congress,  and  in  Canada  to  the  Domi- 
nion Parliament,  and  in  Australia  to  the  Commonwealth 
Parliament.  If  such  a  scheme  provided,  as  it  probably 
would  provide,  for  an  exclusive  assignment  to  the  local 
legislatures  of  local  affairs,  so  as  to  debar  the  Imperial 
Parliament  from  interfering  therewith,  it  would  destroy 
the  present  Flexible  British  Constitution  and  substitute 

1  It  may  of  course  be  observed  (see  p.  175,  ante)  that  the  British  Parliament, 
while  it  continues  to  be  elected  as  now,  may  be  unable  to  divest  itself  of  its  general 
power  of  legislating  for  the  whole  Empire,  and  might  therefore  repeal  the  Act  by 
which  it  had  resigned  certain  matters  to  the  Federal  Assembly  and  resume  them 
for  itself.  This  is  one  of  those  apices  iuris  of  which  the  Romans  say  non  sunt 
iura  :  and  in  point  of  fact  no  Parliament  can  be  supposed  capable  of  the  breach 
of  faith  which  such  a  repeal  would  involve.  The  supposed  legal  difficulty  might, 
however,  be  avoided  by  some  such  expedient  as  that  previously  suggested. 

14 


210  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

a  Rigid  one  for  it.  Care  would  have  to  be  taken  to  use 
proper  legal  means  of  extinguishing  the  general  sove- 
reign authority  of  the  present  Parliament,  as  for  instance 
by  directing  the  elections  for  the  new  Federal  Legisla- 
ture to  be  held  in  such  a  way  as  to  effect  a  breach  of  con- 
tinuity between  it  and  the  old  Imperial  Parliament,  so 
that  the  latter  should  absolutely  cease  and  determine 
when  the  new  Constitution  came  into  force.  Upon  this 
scheme  also  it  would  be  for  the  Courts  of  Law  to  deter- 
mine whether  in  any  given  case  either  the  Federal  or  one 
of  the  Local  Legislatures  had  exceeded  its  powers. 

Some  persons  have  proposed  to  combine  both  these 
proposals  so  as  to  make  the  four  parts  of  the  United 
Kingdom  each  return  members,  along  with  the  Colonies, 
to  a  Pan-Britannic  Federal  Legislature,  and  to  place 
the  local  legislatures  of  Scotland,  for  instance,  or  Wales, 
in  a  line  with  those  of  the  Australian  Commonwealth  or 
New  Zealand.  On  this  plan  also  the  British  Constitu- 
tion would  become  a  Rigid  one. 

The  difficulties,  both  legal  and  practical,  with  which 
these  proposals,  taken  either  separately  or  in  conjunc- 
tion, are  surrounded,  are  greater  than  those  who  advo- 
cate them  have  as  yet  generally  perceived. 

XVI.   ARE  NEW  CONSTITUTIONS  LIKELY  TO  ARISE  ? 

The  remaining  question,  also  somewhat  speculative, 
relates  to  the  prospects  the  future  holds  out  to  us  of 
seeing  new  States  with  new  Constitutions  arise. 

New  States  may  arise  in  one  of  two  ways,  either  by 
their  establishment  in  new  countries  where  settled  and 
civilized  government  has  been  hitherto  unknown,  or  by 
the  breaking  up  of  existing  States  into  smaller  ones, 
fragments  of  the  old. 

The  opportunities  for  the  former  process  have  now 
been  sadly  curtailed  through  the  recent  appropriation 
by  a  few  great  civilized  States  of  some  two-thirds  of  the 
surface  of  the  globe  outside  Europe.  North  America  is 


FLEXIBLE  AND  RIGID   ( ~n \  N  7 7  TUTIONS  211 

in  the  hands  of  three  such  States.  Central  and  South 
America,  though  the  States  are  all  weak  and  most  of 
them  small  in  population,  are  so  far  occupied  that  no 
space  is  left.  The  last  chance  disappeared  when  the 
Argentine  Republic  asserted  a  claim  to  Patagonia,  where 
it  would  have  been  better  that  some  North  European 
race  should  have  developed  a  new  colony,  as  the  Welsh 
settlers  were  doing  on  a  small  scale.  Australia  is  occu- 
pied. Asia,  excluding  China  and  Japan  in  the  East,  and 
the  two  dying  Musulman  powers  in  the  West,  is  virtu- 
ally partitioned  between  Britain  and  Russia,  with  France 
holding  a  bit  of  the  south-east  corner.  So  Africa  has 
now  been  (with  trifling  exceptions)  divided  between  five 
European  Powers  (Portugal,  England,  France,  Ger- 
many, Italy).  Thus  there  is  hardly  a  spot  of  earth  left 
on  which  a  new  independent  community  can  establish 
itself,  as  the  Greeks  founded  a  multitude  of  new  com- 
monwealths in  the  eighth  and  seventh  centuries  B.  c.,  and 
as  the  Teutonic  invaders  founded  kingdoms  during  the 
dissolution  of  the  Roman  Empire. 

If  we  turn  to  the  possibilities  of  new  States  arising 
from  the  ruins  of  existing  ones,  whether  by  revolt  or  by 
peaceful  separation,  the  prospect  is  not  much  more  en- 
couraging. There  is  indeed  Turkey.  Five  out  of  the 
six  new  States  that  have  arisen  in  Europe  during 
this  century  have  been  carved  out  of  the  territories 
she  claimed — viz.  Greece,  Rumania,  Servia,  Bulgaria, 
Montenegro :  and  there  is  material  for  one  or  two  more 
in  Europe  and  possibly  for  one  or  two  in  Asia,  though  it 
is  more  probable  that  both  the  Asiatic  and  European 
dominions  of  the  Sultan  will  be  partitioned  among  exist- 
ing States  than  that  new  ones  will  spring  out  of  them. 
The  ill-compacted  fabric  of  the  Austro-Hungarian  mon- 
archy may  fall  to  pieces.  Parts  of  the  Asiatic  dominions 
of  Russia  may  possibly  (though  in  a  comparatively  dis- 
tant future)  become  independent  of  the  old  Muscovite 
motherland,  and  the  less  civilized  among  the  republics 
of  Central  and  South  America  may  be  broken  into  parts 


312  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

or  combined  into  new  States,  though  the  saying  '  plus 
cela  change,  plus  c'est  la  meme  chose  '  is  even  more  true 
of  those  countries  than  of  that  to  which  it  was  originally 
applied,  and  gives  little  hope  of  interesting  novelties. 
But  on  the  whole  the  tendency  of  modern  times  is  rather 
towards  the  aggregation  of  small  States  than  towards 
the  division  of  large  ones.  Commerce  and  improved 
facilities  of  communication  are  factors  of  constantly  in- 
creasing importance  which  work  in  this  direction,  and 
this  general  tendency  for  the  larger  States  to  absorb  the 
smaller  forbids  us  to  expect  the  rise,  within  the  next 
few  generations,  of  more  than  a  few  new  Constitutions 
which  will  provide  matter  for  study  to  the  historian  or 
lawyer  of  the  future. 

What  type  of  Constitution  will  these  new  States,  what- 
ever they  be  and  whenever  they  come,  be  disposed  to 
prefer?  Upon  this  point  it  is  relevant  to  observe  that 
all  the  new  States  that  have  appeared  since  1850  have 
adopted  Rigid  Constitutions,  with  the  solitary  exception 
of  Montenegro,  which  has  no  Constitution  at  all,  but 
lives  under  the  paternal  autocracy  of  the  temporal  ruler 
who  has  succeeded  the  ancient  ecclesiastical  Vladika1. 
Each  of  them,  on  beginning  its  independent  life,  has  felt 
the  need  of  setting  out  the  lines  of  its  government  in  a 
formal  instrument  which  it  has  consecrated  as  funda- 
mental by  placing  it  above  ordinary  legislation.  Similar 
conditions  are  likely  to  surround  the  birth  of  any  new 
States,  similar  motives  to  influence  those  who  tend  their 
infancy.  The  only  cases  in  which  a  Flexible  Constitution 
is  likely  to  arise  would  be  the  division  of  a  country  hav- 
ing such  a  Constitution  into  two  or  more  fragments, 
each  of  which  should  cleave  to  the  accustomed  system ; 
or  the  revolt  of  a  people  or  community  among  whom,  as 
they  grow  into  a  State,  usages  of  government  that  had 
naturally  sprung  up  might,  when  independence  had  been 
established,  continue  to  be  observed  and  so  ripen  into  a 
Constitution.  The  chance  that  either  of  these  cases  will 

i  As  to  Italy,  however,  see  above,  pp.  171  and  176. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  213 

present  itself  is  not  very  great.  New  States  will  more 
probably  adopt  documentary  Constitutions,  as  did  the 
insurgent  colonies  of  England  after  1776  and  of  Spain 
after  1811,  and  as  the  Christians  of  South-Eastern 
Europe  did  when  they  had  rid  themselves  of  the  Turk. 
Upon  the  whole,  therefore,  it  would  seem  that  the  future 
is  rather  with  Rigid  Constitutions  than  with  those  of  the 
Flexible  type. 

It  is  hardly  necessary  to  close  these  speculations  by 
adding  the  warning  that  all  prophecies  in  politics  must 
be  highly  conjectural.  Circumstances  change,  opinion 
changes;  knowledge  increases,  though  the  power  of 
using  it  wisely  may  not  increase  *. 

The  subtlety  of  nature,  and  especially  the  intricacy  of 
the  relations  she  develops  between  things  that  originally 
seemed  to  lie  wide  apart,  far  surpasses  the  calculating 
or  predicting  wit  of  man.  Accordingly  many  things, 
both  in  the  political  arrangements  of  the  world  and  in 
the  beliefs  of  mankind,  which  now  seem  permanent  may 
prove  transitory.  Democracy  itself,  though  most  people 
treat  it  as  a  thing  likely  to  grow  stronger  and  advance 
further,  may  suffer  an  eclipse.  Human  nature  no  doubt 
remains.  But  human  nature  has  clothed  itself  in  the 
vesture  of  every  sort  of  institution,  and  may  change  its 
fashions  as  freely  in  the  tuture  as  it  has  done  in  the  past. 


<f>vfi  T'  iSrjAa  xat  QavevTa  tcpvirrerat. 

Soph.  AJOJC,  646. 


NOTE    TO    ESSAY    III 

CONSTITUTIONAL  AND  OTHER  GOVERN- 
MENTS 

THE  races  and  nations  of  the  world  may,  as  respects 
the  forms  of  Government  under  which  they  live,  be  dis- 
tributed into  four  classes  : — 

I.  Nations  which  have  created  and  maintain  permanent 
political  institutions,  allotting  special  functions  to  each 
organ  of  Government,  and  assigning  to  the  citizens  some 
measure  of  participation  in  the  business  of  Government. 

In  these  nations  we  discover  Constitutions  in  the 
proper  sense  of  the  term.  To  this  class  belong  all  the 
States  of  Europe  except  Russia  and  Montenegro,  and, 
outside  Europe,  the  British  self-governing  Colonies,  the 
United  States  and  Mexico,  the  two  republics  of  South 
Africa,  Japan  and  Chili,  possibly  also  the  Argentine 
Republic. 

II.  Nations  in  which  the  institutions  aforesaid  exist  in 
theory,  but  are  seldom  in  normal  action,  because  they 
are  in  a  state  ot  chronic  political  disturbance  and  mostly 
ruled,  with  little  regard  to  law,  by  military  adventurers. 
This  class  includes  the  republics  of  Central  and  South 
America,  with  the  exception  of  Chili,  and  possibly  of 
Argentina,  whose  condition  has  latterly  been  tolerably 
stable. 

III.  Nations  in  which,  although  the  upper  class  is  edu- 
cated, the  bulk  of  the  population,  being  backward,  has 
not  begun  to  desire  such  institutions  as  aforesaid,  and 
which  therefore  remain  under  autocratic  monarchies. 


NOTE  TO  ESS  AT  III  215 

To  this  class  belong  Russia  and  Montenegro.  Japan 
has  lately  emerged  from  it :  and  two  or  three  of  the 
newest  European  States  might,  but  for  the  interposition 
of  other  nations,  have  remained  in  it. 

IV.  Nations  which  are^  for  one  reason  or  another, 
below  the  level  of  intellectual  life  and  outside  the  sphere 
of  ideas  which  the  permanent  political  institutions  afore- 
said presuppose  and  need  for  their  proper  working. 
This  class  includes  all  the  remaining  peoples  of  the  world, 
from  intelligent  races  like  the  Chinese,  Siamese,  and  Per- 
sians, down  to  the  barbarous  tribes  of  Africa. 

Constitutions,  in  the  sense  in  which  the  term  is  used 
in  the  preceding  Essay,  belong  only  to  the  first  class, 
and  in  a  qualified  sense  to  the  second.  In  the  modern 
world  they  are  confined  to  Europe  and  her  Colonies, 
adding  Japan,  which  has  imitated  Europe.  In  the  ancient 
world  they  were  confined  to  three  races,  Greeks,  Italians, 
and  Phoenicians,  to  whom  one  may  perhaps  add  such 
races  as  the  Lycians,  who  had  learnt  from  the  Greeks. 
Their  range  is  somewhat  narrower  than  that  of  law,  that 
is  to  say,  there  are  peoples  which,  like  the  Musulmans 
of  Turkey,  Egypt,  and  Persia,  have  law,  but  have  no 
Constitutions. 

No  race  that  has  ever  lived  under  a  lost  Constitutional 
Government  has  permanently  lost  it,  except  those  parts 
of  the  Roman  Empire  which  now  form  part  of  the  Turk- 
ish Empire ;  and  the  Roman  Empire,  though  its  Govern- 
ment never  ceased  to  be  in  a  certain  sense  constitutional, 
ultimately  extinguished  the  habit  of  self-government 
among  its  subjects. 


IV 


THE    ACTION    OF    CENTRIPETAL 

AND  CENTRIFUGAL  FORCES  ON 

POLITICAL  CONSTITUTIONS ' 

As  every  government  and  every  constitution  is  the 
result  of  certain  forces  and  tendencies  which  bring  men 
together  in  an  organized  community,  so  every  govern- 
ment and  every  constitution  tends  when  formed  to  hold 
men  together  thenceforth,  training  them  to  direct  their 
efforts  to  a  common  end  and  to  sacrifice  for  that  purpose 
a  certain  measure  of  the  exercise  of  their  individual 
wills.  So  strong  is  the  aggregative  tendency,  that  each 
community  naturally  goes  on  by  a  sort  of  law  of  na- 
ture to  expand  and  draw  in  others,  whether  persons  or 
groups,  who  have  not  previously  belonged  to  it:  nor  is 
physical  force  the  prime  agent,  for  the  great  majority  of 
mankind  prefer  some  kind  of  political  society,  even  one 
in  whose  management  they  have  little  or  no  share,  to 
mere  isolation.  As  this  process  of  expansion  and  aggre- 
gation continues,  the  different  political  groups  which  it 
has  called  into  being  come  necessarily  in  contact  with 
one  another.  The  weaker  ones  are  overcome  or  peace- 
fully absorbed  by  the  stronger  ones,  and  thus  the  number 
of  groups  is  continually  lessened.  Where  two  communi- 
ties of  nearly  equal  strength  encounter  each  other,  each 
may  for  a  time  succeed  in  resisting  the  attraction  of  the 

1  This  Essay  was  composed  in  the  early  part  of  1885.  It  has  been  revised 
throughout,  but  the  substance  remains  the  same. 


CENTRIPETAL  AND  CENTRIFUGAL  FORCES         217 

other.  But  in  this  changeful  world  it  almost  always 
happens  that  sooner  or  later  one  becomes  so  much 
stronger  that  the  other  yields  to  it :  and  thus  in  course  of 
time  the  number  of  detached  communities,  i.e.  of  groups 
each  with  its  own  centre  of  attraction,  becomes  very 
small,  because  the  weak  have  been  swallowed  up  by  the 
strong.  This  is  the  general,  though,  as  we  shall  see,  not 
the  universal  course  of  events.  There  is  also  another 
force  at  work,  which  has  at  some  moments  in  history 
developed  great  strength. 

I.  How  THE  TENDENCIES  TO  AGGREGATION  AND  TO  DIS- 
JUNCTION   RESPECTIVELY   AFFECT    CONSTITUTIONS. 

Of  the  many  analogies  that  have  been  remarked  be- 
tween Law  in  the  Physical  and  Law  in  the  Moral  World, 
none  is  more  familiar  than  that  derived  from  the  New- 
tonian astronomy,  which  shows  us  two  forces  always 
operative  in  our  solar  system.  One  force  draws  the 
planets  towards  the  sun  as  the  centre  of  the  system,  the 
other  disposes  them  to  fly  off  from  it  into  space.  So  in 
politics,  we  may  call  the  tendency  which  draws  men  or 
groups  of  men  together  into  one  organized  community 
and  keeps  them  there  a  Centripetal  force,  and  that  which 
makes  men,  or  groups,  break  away  and  disperse,  a  Cen- 
trifugal. A  political  Constitution  or  frame  of  govern- 
ment, as  the  complex  totality  of  laws  embodying  the 
principles  and  rules  whereby  the  community  is  organized, 
governed,  and  held  together,  is  exposed  to  the  action  of 
both  these  forces.  The  centripetal  force  strengthens  it, 
by  inducing  men  (or  groups  of  men)  to  maintain,  and 
even  to  tighten,  the  bonds  by  which  the  members  of  the 
community  are  gathered  into  one  organized  body.  The 
centrifugal  assails  it,  by  dragging  men  (or  groups)  apart, 
so  that  the  bonds  of  connexion  are  strained,  and  possibly 
at  last  loosened  or  broken.  That  no  community  can  be 
exempt  from  the  former  force  is  obvious.  But  neither 
can  any  wholly  escape  the  latter.  For  every  community 


218          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

has  been  built  out  of  smaller  groups,  and  the  members 
of  such  groups  have  seldom  quite  lost  the  attraction 
which  each  had  to  its  own  particular  centre,  such  attrac- 
tion being  of  course  dissociative  as  regards  the  other 
groups  and  their  members1.  Moreover  in  no  large 
community  can  there  ever  be  a  complete  identity  of  views 
and  wishes,  of  interests  and  feelings,  between  all  the  mem- 
bers. Many  must  have  something  to  complain  of,  some- 
thing which  sets  them  against  the  rest  and  makes  them 
desire  to  be,  for  some  purposes,  differently  treated,  or 
(in  extreme  cases)  to  be  entirely  separated.  The  exist- 
ence of  such  a  grievance  constitutes  a  centre  round  which 
a  group  is  formed,  and  this  group  is  in  so  far  an  element 
of  disjunction.  Accordingly  the  history  of  every  com- 
munity and  every  constitution  may  be  regarded  as  a 
struggle  between  the  action  of  these  two  forces,  that 
which  draws  together  and  that  which  pushes  apart,  that 
which  unites  and  that  which  dissevers. 

This  subject,  it  may  be  thought,  belongs  either  to 
History,  in  so  far  as  history  attempts  to  draw  general 
conclusions  from  the  facts  she  records,  or  to  that  branch 
of  political  science  which  may  be  called  Political  Dyna- 
mics, and  is  one  with  which  the  constitutional  lawyer  is 
not  directly  concerned.  The  constitutional  lawyer,  how- 
ever, must  always,  if  he  is  to  comprehend  his  subject  and 
treat  it  fruitfully,  be  a  historian  as  well  as  a  lawyer.  His 
legal  institutions  and  formulae  do  not  belong  to  a  sphere 
of  abstract  theory  but  to  a  concrete  world  of  fact.  Their 
soundness  is  not  merely  a  logical  but  also  a  practical 
soundness,  that  is  to  say,  institutions  and  rules  must 
represent  and  be  suited  to  the  particular  phenomena  they 
have  to  deal  with  in  a  particular  country.  It  is  through 
history  that  these  phenomena  are  known.  History  ex- 
plains how  they  have  come  to  be  what  they  are.  History 
shows  whether  they  are  the  result  of  tendencies  still  in- 

1  In  the  pages  that  follow  the  word  Group  is  used  to  denote  the  section  of  per- 
sons within  a  larger  community  who  may  be  held  together  by  some  tie,  whether 
of  interest  or  sentiment  or  race  or  local  habitation,  which  makes  them  a  sort  of 
minor  community  inside  the  larger  one. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         219 

creasing  or  of  tendencies  already  beginning  to  decline. 
History  explains  them  by  parallel  phenomena  in  other 
times  and  places.  Thus  the  lawyer  who  has  to  consider 
and  advise  on  any  constitutional  problem,  and  still  more 
the  lawyer  who  has  to  contrive  a  constitutional  scheme 
for  grappling  with  a  political  difficulty,  must  study  the 
matter  as  a  historian,  otherwise  he  will  himself  err  and 
mislead  those  whom  he  advises.  Great  lawyers  often 
have  so  erred,  and  with  lamentable  results.  A  lawyer 
who  shall  deal  with  a  constitutional  problem  as  he  would 
deal  with  a  technical  point  in  the  law  of  real  property  will 
be  as  much  astray  as  an  advocate  who  should  prosecute 
or  defend  a  political  prisoner  with  a  sole  regard  to  the  law 
of  treason  or  sedition  which  he  may  find  in  his  books, 
heedless  of  the  temper  and  opinion  of  those  from  among 
whom  the  jury  will  be  drawn. 

An  obvious  illustration  may  be  found  in  the  fact  that 
when  any  particular  community  is  studied  from  the 
constitutional  point  of  view,  and  the  inquiry  is  raised 
whether  it  ought  to  have  a  Flexible  or  a  Rigid  Constitu- 
tion, the  question  of  the  comparative  actual  strength  of 
these  two  forces  becomes  a  vital  one.  Where  the  centri- 
petal force  is  palpably  the  stronger,  either  sort  of  con- 
stitution will  do  to  hold  the  community  together:  and 
the  choice  between  the  two  sorts  may  be  made  on  other 
grounds.  But  where  the  centrifugal  force  is  potent,  and 
especially  where  there  are  reasons  to  apprehend  its 
further  development,  the  establishment  of  a  Rigid  Con- 
stitution may  become  desirable,  and  yet  may  be  a  matter 
of  much  delicacy  and  difficulty.  If  the  constitution  be 
framed  in  the  interests  of  a  centralizing  policy,  there  is 
a  danger  that  it  may  assume  and  require  for  its  mainte- 
nance a  greater  strength  in  the  centripetal  forces  than 
really  exists,  and  that  for  the  want  of  such  strength  the 
constitution  may  be  exposed  to  a  strain  it  cannot  resist. 
Amid  the  constant  change  of  phenomena,  a  Rigid  Con- 
stitution necessarily  represents  the  past,  not  the  present ; 
and  if  the  tendencies  actually  operative  are  towards  the 


220          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

dissociation  of  the  component  groups  of  the  community, 
a  frame  of  government  which  fails  to  provide  scope  for 
these  tendencies  will  soon  become  out  of  date  and  unfit 
for  its  work.  Where,  on  the  other  hand,  the  existence  of 
distinct  groups,  each  desiring  some  control  of  its  own 
affairs,  is  fully  perceived  and  duly  admitted  as  a  factor  in 
the  condition  of  the  community,  and  where  it  is  desired 
to  give  legal  recognition  to  the  fact,  and  to  protect  the 
other  local  groups  or  sub-communities  from  being  over- 
ridden by  the  largest  among  the  groups,  or  by  the  com- 
munity as  a  whole,  the  creation  of  a  Rigid  Constitution 
offers  a  valuable  means  of  securing  these  objects.  For 
such  a  constitution  may  be  so  drawn  as  to  place  the  local 
groups  under  the  protection  of  a  fixed  body  of  law,  mak- 
ing their  privileges  an  integral  part  of  the  frame  of  gov- 
ernment, so  that  the  whole  Constitution  must  stand  or 
fall  with  the  maintenance  of  the  rights  enjoyed  by  the 
groups  1.  The  familiar  instance  of  such  a  form  of  Rigid 
Constitution  is  a  Federal  Constitution.  It  is  specially 
adapted  to  the  case  of  a  country  where  the  centrifugal 
forces  are  so  strong  that  it  is  clear  that  the  groups  will 
not  consent  to  be  wholly  merged  and  lost  in  one  com- 
munity, as  under  a  Flexible  Constitution  might  befall 
them,  yet  where  they  are  sufficiently  sensible  of  the  ad- 
vantages of  combination  to  be  willing  to  enter  into  a 
qualified  and  restricted  union.  And  in  these  cases  it  has 
sometimes  proved  to  be  an  efficient  engine  for  further 
centralization.  That  is  to  say,  the  best  way  of  strength- 
ening in  the  long  run  the  centripetal  tendencies  has  been 
to  give  so  much  recognition  and  play  to  the  centrifugal 
as  may  disarm  them,  and  may  allow  the  causes  which 
make  for  unity  to  operate  quietly  without  exciting 
antagonism. 

It  appears  accordingly  that  the  historian  who  studies 
constitutions,  and  still  more  the  draftsman  who  frames 
them,  must  have  his  eye  constantly  fixed  on  these  two 

1  Subject  of  course  to  any  provisions  for  amending  the  Constitution  which  may 
have  been  inserted.  See  Essay  III,  p.  176  sqq. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCED          221 

forces.  They  are  the  matter  to  which  the  legislator  has 
to  give  form.  They  create  the  state  of  things  which  a 
Constitution  has  to  deal  with,  so  laying  down  principles 
and  framing  rules  as  on  the  one  hand  to  recognize  the 
forces,  and  on  the  other  hand  to  provide  safeguards 
against  their  too  violent  action.  Their  action  will  pre- 
serve or  destroy  the  Constitution, — preserve  it,  if  it  has 
given  them  due  recognition  and  scope,  destroy  it,  if  its 
provisions  turn  out  to  be  opposed  to  the  sweep  of  irre- 
sistible currents.  The  forces  that  move  society  are  to 
the  constructive  jurist  or  legislator  what  the  forces  of 
nature  are  (in  the  famous  Baconian  phrase)  to  man.  He 
is  their  servant  and  interpreter.  They  can  be  overcome 
only  by  obeying  them.  If  he  defies  or  misunderstands 
them,  they  overthrow  his  work.  If  he  knows  how  to 
use  them,  they  preserve  it.  But  his  difficulty  is  greater 
than  that  of  the  physicist,  because  these  social  forces  are 
more  complex  than  those  of  inanimate  nature,  and  vary 
in  their  working  from  generation  to  generation. 

II.    TENDENCIES  WHICH   MAY   OPERATE  EITHER   AS 
CENTRIPETAL  OR  AS  CENTRIFUGAL  FORCES. 

Now  let  us  see  what  are  the  chief  among  the  tenden- 
cies which  in  political  society  are  capable  of  playing  the 
part  either  of  centripetal  or  of  centrifugal  forces. 

So  far  as  individual  men  are  concerned,  all  the  ten- 
dencies that  work  on  them  may  be  said  to  be  associative 
tendencies,  that  is  to  say,  every  thing  tends  to  knit  indi- 
vidual men  together  into  a  band  or  group,  and  to  make 
them  act  together.  The  repulsion  of  man  from  man  is  so 
rare  that  we  may  ignore  it.  Even  the  keenest  individual- 
ist desires  to  convert  other  men  to  his  individualism,  and 
forms  a  league  for  the  purpose  with  others  who  are  like- 
minded. 

As  regards  political  societies,  the  subject  wherewith 
we  are  here  concerned,  the  tendencies  I  am  going  to 
enumerate  may  be  either  associative  or  dissociative. 


222          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

Whether  in  the  case  of  any  given  State  they  act  as 
agglutinative  and  consolidating  forces  or  as  splitting  and 
rending  forces  depends  upon  whether  they  are  at  the 
moment  giving  their  support  to,  or  are  enlisted  in  the 
service  of,  the  State  as  a  whole,  or  are  strengthening  the 
group  or  groups  inside  the  State  which  are  seeking  to 
assert  either  their  rights  within  the  State  or  their  inde- 
pendence of  it.  Even  obedience,  the  readiness  to  submit 
and  follow,  which  might  seem  primarily  a  centripetal 
force,  may  be  centrifugal  as  against  the  State  if  it  leads 
the  partisans  of  a  particular  recalcitrant  group  to  sur- 
render their  wills  to  the  leaders  of  that  group.  Even 
the  love  of  independence,  the  desire  to  let  each  man's 
individuality  have  full  scope,  may  act  as  a  centripetal 
force  if  it  disposes  men  to  revolt  against  the  tyranny  of 
a  faction  and  maintain  the  rights  and  interests  of  the 
whole  people  against  the  attempts  of  that  faction  to  have 
its  own  way.  There  are  always  two  centres  of  attrac- 
tion and  two  groupings  to  be  considered,  the  larger, 
which  we  call  the  State,  and  the  smaller,  which  may  be 
either  a  subordinate  community,  such  as  a  province, 
district  or  dependency,  or  only  a  party  or  faction.  And 
the  centripetal  force  which  draws  men  to  the  smaller 
centre  is  a  centrifugal  force  as  regards  the  larger. 

These  two  tendencies,  which  I  have  referred  to  as 
Obedience  and  Individualism,  are  so  familiar,  and  the 
former  is  a  disposition  of  human  nature  so  generally 
pervasive,  as  to  need  no  further  discussion.  The  other 
tendencies  which  may  operate  either  centrifugally  or 
centripetally  may  be  classed  under  the  two  heads  of  In- 
terest and  Sympathy.  Under  the  head  of  Interest  there 
fall  all  those  influences  which  belong  to  the  sphere  of 
Property,  including  of  course  Industry  and  Commerce 
as  means  of  acquiring  property.  These  influences  usu- 
ally make  for  consolidation  and  assimilation.  It  is  a  gain 
to  the  trader  or  the  producer  that  the  area  of  consumers 
which  he  supplies  without  the  hindrance  of  an  interposed 
customs  tariff  should  be  as  wide  as  possible.  It  is  a  gain 


CENTRIPETAL  AMt   CENTRIFUGAL   HHU'titi         223 

that  communications  by  sea  and  land  should  be  safe, 
easy,  swift,  and  cheap,  and  these  objects  are  better  se- 
cured in  a  large  country  under  a  strong  government. 
It  is  a  gain  that  coinage,  weights,  and  measures  should 
be  uniform  over  the  largest  possible  area  and  that  the 
standard  of  the  currency  should  be  upheld.  It  is  a  gain 
that  the  same  laws  and  the  same  system  of  courts  should 
prevail  in  every  part  of  a  State — and  the  larger  the  State 
the  better,  so  far  as  these  matters  are  concerned — and 
that  the  law  should  be  steadily  enforced  and  complete 
public  order  secured.  All  these  things  make  not  only  for 
the  growth  of  industry  and  the  spread  of  trade,  but  also 
for  the  value  of  all  kinds  of  property.  And  all  these  in- 
fluences, derived  from  the  consideration  of  such  gains, 
which  play  upon  the  citizen's  mind,  are  usually  aggre- 
gative influences,  disposing  him  to  desire  the  extension 
of  the  State  and  the  strength  of  its  central  authority. 
Considerations  of  Interest,  therefore,  usually  operate  as 
a  centripetal  force.  It  was  through  commercial  interests 
that  the  States  of  Germany  were,  after  the  fall  of  the  old 
Romano-Germanic  Empire,  drawn  into  that  Zollverein 
which  became  a  stage  towards,  and  ultimately  the  basis 
of,  the  present  German  Empire.  It  was  the  increase  of 
trade,  after  the  union  of  Scotland  and  England,  that  by 
degrees  reconciled  the  Scotch  to  a  measure  which  was 
at  first  most  unpopular  among  them  as  threatening  to 
extinguish  their  national  existence.  It  is  the  absence 
of  any  strong  commercial  motives  for  political  union 
that  has  hampered  the  efforts  of  those  who  have 
striven,  so  far  successfully,  to  keep  Norway  and  Sweden 
united. 

In  exceptional  cases,  however,  the  influences  of  Inter- 
est may  be  centrifugal.  A  particular  group  of  traders  or 
landowners,  for  instance,  living  in  a  particular  district, 
may  think  they  will  gain  more  by  having  the  power  to 
enact  special  laws  for  the  conduct  of  their  own  affairs  or 
for  the  exclusion  of  competing  persons  than  they  will  by 
entering  or  by  remaining  under  the  uniform  system  of  a 


224          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

large  State1.  Trade  considerations  counted  for  some- 
thing in  making  the  planters  of  the  Slave  States  of 
America  desire  to  sever  themselves  from  a  government 
in  which  the  protectionist  party  was  generally  dominant. 
It  is  partly  on  economic  grounds  that  the  various 
provinces  of  the  Cis-Leithanian  part  of  the  Austro- 
Hungarian  Monarchy  have  been  allowed,  and  desire 
to  maintain,  each  its  autonomy.  It  was  largely  a  diver- 
gence of  economic  views  and  interests  that  so  long 
deterred  the  free  trade  colony  of  New  South  Wales 
from  linking  its  fortunes  in  a  federation  with  the  pro- 
tectionist colonies ;  nor  were  there  wanting  industrial 
grounds  which  made  the  adhesion  of  Queensland  long 
doubtful. 

To  the  head  of  Sympathy  we  must  refer  all  the  influ- 
ences which  flow  not  from  calculation  and  the  desire  of 
gain,  but  from  emotion  or  sentiment.  The  sense  of 
community,  whether  of  belief,  or  of  intellectual  convic- 
tion, or  of  taste,  or  of  feeling  (be  it  affection  or  aversion 
towards  given  persons  or  things),  engenders  sympathy, 
and  draws  men  together.  To  the  same  class  belong  the 
recognition  of  a  common  ancestry,  the  use  of  a  common 
speech,  the  enjoyment  of  a  common  literature.  The  im- 
portance of  these  factors  has  often  been  exaggerated. 
Some  of  the  keenest  Irish  revolutionaries  have  been 
English  by  blood  and  Protestants  by  faith.  The  Border- 
ers of  Northumberland  and  those  of  Berwickshire  did 
not  hate  one  another  less  because  they  were  of  the  same 
stock  and  spoke  the  same  tongue.  The  Celts  of  Inver- 
ness-shire and  the  Teutons  of  Lothian  are  now  equally 
enthusiastic  Scotchmen,  though  they  disliked  and  de- 
spised one  another  almost  down  to  the  days  of  Walter 

1  The  case  of  Ireland  shows  the  same  forces  of  industrial  or  commercial  in- 
terest, real  or  supposed,  operating  partly  as  centripetal,  partly  as  centrifugal. 
The  Nationalist  party  conceive  that  economic  benefits  would  result  from  a  local 
legislature,  which  could  aid  local  industries.  The  mercantile  class,  especially  in 
the  north-eastern  part  of  the  island,  fear  commercial  loss  from  anything  which 
could  hamper  their  trade  intercourse  with  Scotland  and  England,  or  which  might 
be  deemed  prejudicial  to  commercial  credit.  With  the  soundness  of  either  view  I 
am  not  concerned  ;  it  is  sufficient  to  note  the  facts. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         225 

Scott 1 .  Mere  identity  of  origin  does  not  count  for  much, 
as  witness  the  ardent  Hungarian  patriotism  of  most  of 
the  Germans  and  Jews  settled  in  Hungary,  with  perhaps 
no  drop  of  Magyar  blood  in  their  veins.  Community  of 
language  does  not  any  more  than  a  common  ancestry 
necessarily  make  for  love,  and  indeed  may  increase 
hatred,  because  in  an  age  of  newspapers  each  of  two  dis- 
putant parties  can  read  the  injurious  things  said  of  it  by 
the  other.  Civil  wars  are,  like  family  quarrels,  prover- 
bially embittered.  Tocqueville  wrote,  in  1833,  that  he 
could  imagine  no  more  venomous  hatred  than  the  Amer- 
icans then  felt  for  England.  So  it  may  be  said  that 
though  the  want  of  these  elements  of  community  is  usu- 
ally an  obstacle  to  unity,  their  presence  is  no  guarantee 
for  its  existence.  Somewhat  greater  value  belongs  to 
identity  of  traditions  and  historical  recollections,  and  to 
the  possession  of  the  materials  for  a  common  pride  in 
past  achievements.  Most  men  find  a  personal  satisfac- 
tion and  take  a  personal  pride  in  recalling  the  feats  and 
struggles  of  the  nation,  or  the  tribe,  or  the  party,  or  the 
sect,  to  which  they  belong,  so  the  recollection  of  exploits 
or  sufferings  becomes  an  effective  rallying  point  for  a 
group.  We  all  know  how  powerful  a  force  such  memo- 
ries have  been  at  various  times  in  stimulating  national 
feeling  in  Italy,  in  Germany,  in  Hungary,  in  Scotland, 
in  Portugal,  in  Ireland. 

Still  less  necessary  is  it  to  dwell  upon  the  influence  of 
Religion,  which,  as  it  touches  the  deepest  chords  of 
man's  nature,  is  capable  of  educing  the  maximum  of 
harmony  or  discord.  No  force  has  been  more  efficient 
in  knitting  factions  and  States  together,  or  in  breaking 
them  up  and  setting  the  parts  of  a  State  in  fierce  an- 
tagonism to  one  another.  Religion  held  together  the 
Eastern  Empire,  originally  a  congeries  of  diverse  races, 
in  the  midst  of  dangers  threatening  it  from  every  side  for 

1  A  curious  survival  of  the  dislike  of  the  Lowlander  to  the  Highlander  may  be 
found  in  Carlyle's  comments  upon  the  Highland  wife  of  his  friend  Thomas  Camp- 
bell the  poet. 
15 


226         CENTRIPETAL  AND   CENTRIFUGAL  FORCED 

eight  hundred  years.  Religion  now  holds  together  the 
Turkish  Empire  in  spite  of  the  hopeless  incompetence 
of  its  government.  Religion  split  up  the  Romano-Ger- 
manic Empire  after  the  time  of  Charles  the  Fifth.  The 
instances  of  the  Jews  and  the  Armenians  are  even  more 
familiar. 

There  remains  a  large  and  rather  miscellaneous  cate- 
gory of  sources  of  sympathy  which  we  may  call  by  the 
general  name  of  Elements  of  Compatibility.  Traits  of 
character,  ideas,  social  customs,  similarity  of  intellectual 
culture,  of  tastes,  and  even  of  the  trivial  usages  of  daily 
life,  all  contribute  to  link  men  together,  and  to  assimilate 
them  further  to  one  another,  as  the  absence  of  these 
things  tends  to  differentiation  and  dissimilation,  because 
it  supplies  points  in  which  the  members  of  one  group, 
racial  or  local  or  social,  feel  themselves  out  of  touch  with 
the  members  of  another,  and  possibly  inclined  to  show 
contempt,  or  to  think  themselves  contemned,  on  the 
ground  of  the  divergence.  The  natural  repulsion  which 
the  Germans  usually  feel  for  the  Slavs,  and  the  Slavs 
for  the  Germans,  seems  to  have  its  root  in  a  difference  of 
character  and  temperament  which  makes  it  hard  for 
either  race  to  do  full  justice  to  the  other.  That  repulsion 
is  powerfully  operative  to-day  in  the  Austrian  Empire. 
In  the  ancient  world  the  obstinate  and  passionate  Egyp- 
tians seem  to  have  displayed,  and  provoked,  a  similar 
antagonism  in  their  contact  with  other  races,  and  par- 
ticularly with  the  arrogant  Persians. 

These  influences  of  Sympathy,  like  those  of  Interest, 
may  figure  either  as  centripetal  or  centrifugal  forces, 
according  as  the  centre  round  which  they  group  and 
towards  which  they  draw  men  is  the  main  centre  of  that 
larger  circle  represented  by  the  State  or  the  centre  of 
the  smaller  circle  represented  by  the  tribe,  the  district, 
the  province,  the  faith,  the  sect,  the  faction.  The  same 
feeling  may  play  the  one  part  or  the  other  according  to 
the  accident  of  individual  view,  or  taste,  or  environment. 
Thus  in  a  University  consisting  of  a  number  of  autono- 


CESTRU'HTAL   AND    <  i:\THIFUGAL  FORCES          227 

mous  colleges,  one  man  may  be  a  centralizer,  and  seek 
to  bring  the  colleges  into  subordination,  pecuniary  and 
administrative,  to  the  University,  while  another  man 
may  desire  to  maintain  their  independence,  and  yet  both 
may  set  a  high  value  on  corporate  spirit,  and  be  filled 
with  it  themselves.  In  one  man  this  spirit  clings  to 
the  college,  in  another  it  glorifies  the  University.  The 
patriotism  which  makes  a  Magyar  desire  that  Hungary 
should  absorb  Croatia,  and  that  which  makes  a  Croat 
desire  to  sever  his  country  from  Hungary,  are  essen- 
tially the  same  sentiment,  though,  as  regards  the  mon- 
archy of  the  Hungarian  Crown,  the  sentiment  operates 
with  the  Magyar  as  an  attractive,  with  the  Croat  as  a 
repulsive  force.  This  statement  is  generally  true  of  that 
complex  feeling,  based  upon  affinities  of  race,  of  speech, 
of  literature,  of  historic  memories,  of  ideas,  which  we 
call  the  Sentiment  of  Nationality,  a  sentiment  compara- 
tively weak  in  the  ancient  world  and  in  the  Middle  Ages, 
and  which  did  not  really  become  a  factor  of  the  first 
moment  in  politics  till  the  religious  passions  of  the  six- 
teenth and  seventeenth  centuries  had  almost  wholly  sub- 
sided, and  the  gospel  of  political  freedom  preached  in  the 
American  and  French  Revolutions  had  begun  to  fire 
men's  minds.  As  regards  the  historical  States  of  Europe, 
it  is  a  sentiment  which  is  both  aggregative  and  segre- 
gative. It  has  contributed  to  create  the  German  Em- 
pire :  yet  it  is  also  a  sentiment  which  makes  Bavaria 
unwilling  to  merge  in  that  Empire  her  individual  exist- 
ence. In  Bavaria,  and  still  more  in  the  case  of  Scotland, 
which  had  a  long  and  brilliant  national  history,  the  senti- 
ment of  local  has  been  found  compatible  with  a  senti- 
ment of  imperial  patriotism. 

It  is  a  remarkable  feature  of  recent  times  that  the 
tendency  of  a  common  interest  to  draw  groups  together 
and  make  them  prize  the  unity  of  the  State  is  often 
accompanied  by  the  parallel  development  of  an  opposite 
tendency,  based  on  sentiment,  to  intensify  the  life  of  the 
smaller  group  and  in  so  far  to  draw  it  apart,  and  thereby 


228          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

weaken  the  unity  of  the  State.  This  arises  from  the 
fact  that  the  march  of  civilization  is  material  on  the  one 
hand,  intellectual  and  moral  on  the  other.  So  far  as  it  is 
material,  it  generally  makes  for  unity.  On  its  intellec- 
tual and  social  or  moral  side  it  works  in  two  ways.  It 
tends  to  break  down  local  prejudices  and  to  create  a 
uniform  type  of  habits  and  character  over  a  wide  area. 
But  it  also  heightens  the  influence  of  historical  memo- 
ries. It  is  apt  to  rekindle  resentment  at  old  injuries. 
Filling  men's  minds  with  the  notion  of  social  and  politi- 
cal equality,  it  disposes  them  to  feel  more  keenly  any 
social  or  political  inferiority  to  which  they  may  be  sub- 
jected. Raising  the  estimate  they  set  upon  themselves 
as  individuals  and  as  a  race,  it  makes  them  more  bold  in 
organizing  themselves  and  claiming  what  they  deem 
their  rights.  And  so  one  notes  the  singular  phenomenon 
that  men  are  stirred  to  disaffection,  or  impelled  towards 
separation,  by  grievances  less  acute  than  those  which 
their  ancestors,  sunk  in  ignorance  and  despondency, 
bore  almost  without  a  murmur.  The  Roman  Catholic 
Irish  since  1782  and  the  Transylvanian  Rumans  since 
1848  are  instances  in  point. 

All  these  tendencies,  pulling  this  way  and  that,  are 
among  the  facts  which  a  given  Constitution  has  to  deal 
with,  are  forces  which  it  must  use  in  order  to  secure  its 
own  strength  and  permanence.  Where,  in  a  free  country, 
the  system  of  government  has  grown  up  naturally,  and 
can  be  readily  modified  by  the  normal  action  of  the 
normal  sovereign  authority,  i.e.  where  the  Constitution 
is  a  Flexible  one,  the  presumption  is  that  the  rules  and 
usages  of  the  Constitution  conform  to  and  represent  the 
actual  forces,  and  draw  strength  therefrom.  Yet  even 
in  countries  governed  on  this  system  there  is  a  risk  that 
the  Constitution  which  the  will  of  a  majority  has  estab- 
lished may  leave  a  minority  discontented  and  unrestful, 
and  that  such  discontent  and  unrest  may  impede  the 
working  of  the  machinery  and  create  an  element  of  in- 
stability. In  such  countries,  it  may  be  the  part  of  wis- 


CENTRIPETAL  AND   CENTRIFUGAL  FORCED         229 

dom  for  the  majority  to  yield  something  to  the  minority, 
modifying  the  Constitution,  so  far  as  it  can  safely  be 
modified,  in  order  to  remove  the  obstacles  to  harmony. 
A  centrifugal  force  which  is  not  strong  enough  to  dis- 
rupt the  State,  because  the  centripetal  forces  are  on  the 
whole  more  powerful,  may  nevertheless  be  able  to  cause 
a  harmful  friction,  and  may  even,  if  the  State  be  exposed 
to  external  attacks,  become  a  source  of  peril.  Every- 
body can  now  see  that  Rome  ought  to  have  admitted 
the  Italian  allies  to  the  franchise  long  before  the  Social 
War,  that  Catholic  Emancipation  ought  to  have  been 
enacted  by  the  Irish  Parliament  in  1796  or  by  the  British 
Parliament  immediately  after  the  Union  of  1800,  that 
Denmark  ought  not  to  have  waited  till  1874  before  she 
conceded  a  qualified  autonomy  to  Iceland,  that  the  same 
country  might  probably  have  retained  Schleswig-Hol- 
stein  if  she  had  yielded  long  before  the  war  of  1864  some 
of  the  demands  made  by  the  German  inhabitants  of  those 
duchies.  And,  if  we  may  apply  the  same  principle  to 
despotically  governed  countries,  most  people  will  agree 
that  Austria  ought  to  have  retired  from  Lombardy  be- 
fore 1859,  and  that  the  Turks  gained  nothing  by  cling- 
ing to  Bulgaria,  and  may  be  gaining  nothing  now  by 
clinging  to  Macedonia. 

III.    How   CONSTITUTIONS   MAY   USE   THE  CENTRIPETAL 
FORCES  TO  PROMOTE  NATIONAL  UNITY. 

As  we  are  here  dealing  with  constitutions  considered 
in  their  relation  to  the  forces  and  tendencies  that  rule  in 
politics  (i.e.  as  a  part  of  political  dynamics),  we  may  now 
inquire  what  it  is  that  Constitutions  can  accomplish  in 
the  way  of  regulating  or  controlling  these  forces. 

Every  political  Constitution  has  three  main  objects. 

One  is  to  establish  and  maintain  a  frame  of  govern- 
ment under  which  the  work  of  the  State  can  be  efficiently 
carried  on,  the  aims  of  such  a  frame  of  government 
being  on  the  one  hand  to  associate  the  people  with  the 


230          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

government,  and,  on  the  other  hand,  to  preserve  public 
order,  to  avoid  hasty  decisions  and  to  maintain  a  tolera- 
ble continuity  of  policy. 

Another  is  to  provide  due  security  for  the  rights  of 
the  individual  citizen  as  respects  person,  property,  and 
opinion,  so  that  he  shall  have  nothing  to  fear  from  the 
executive  or  from  the  tyranny  of  an  excited  majority. 
This  object  has  fallen  into  the  background  since  these 
rights  came  to  be  fully  recognized.  But  in  earlier  times 
it  was  the  chief  purpose  of  constitutional  provisions 
from  Magna  Charta  down  to  the  Bill  of  Rights  and  the 
Declaration  of  Independence.  The  safeguard  for  these 
rights  which  the  Constitution  of  England  provided,  was 
the  thing  which,  more  perhaps  than  anything  else,  moved 
the  admiration  of  foreign  observers  who  studied  that 
constitution  during  the  eighteenth  century. 

The  third  object  is  to  hold  the  State  together,  not 
only  to  prevent  its  disruption  by  the  revolt  or  secession 
of  a  part  of  the  nation,  but  to  strengthen  the  cohesive- 
ness  of  the  country  by  creating  good  machinery  for 
connecting  the  outlying  parts  with  the  centre,  and  by 
appealing  to  every  motive  of  interest  and  sentiment  that 
can  lead  all  sections  of  the  inhabitants  to  desire  to  re- 
main united  under  one  government. 

In  pursuing  these  objects,  a  constitution  seeks  to 
achieve  by  means  of  legal  provisions  that  which  in  ruder 
times  it  was  often  necessary  to  accomplish  by  physical 
force.  No  doubt  at  all  times  the  natural  disposition  to 
obey  (the  sources  of  which  I  have  analysed  elsewhere  *) 
was  an  agent  more  constant  and  effective  than  physical 
force.  Nevertheless,  the  latter  was  needed,  sometimes 
from  the  side  of  the  government  to  maintain  order  and 
compel  subjects  to  bear  their  share  of  the  public  bur- 
dens, sometimes  from  the  side  of  the  subjects  to  abate 
the  abuses  into  which  the  possession  of  power  tempts 
rulers.  Troops  to  keep  order  and  quell  revolts,  and 
men  handy  with  their  weapons  and  ready  to  rise  in  insur- 

1  See  Essay  IX,  p.  467  sqq. 


CENTRIPETAL   AM)   CENTRIFUGAL  FOAV/v'x  231 

rection  to  dethrone  bad  monarchs  or  expel  bad  minis- 
ters, were  a  necessary  part  of  the  equipment  of  political 
societies  in  the  ruder  ages. 

A  good  constitution  relieves  the  government  from 
the  necessity  of  frequently  resorting  to  military  force  by 
securing  that  those  who  govern  shall  be  persons  ap- 
proved by  the  bulk  of  the  citizens,  as  well  as  by  providing 
for  the  purposes  of  coercion  machinery  so  promptly 
and  effectively  applicable,  that  the  elements  of  disturb- 
ance either  do  not  break  forth  or  are  quickly  suppressed. 
Similarly  it  relieves  the  subjects  from  the  need  of  rising 
in  rebellion  by  providing  machinery  whereby  the  com- 
plaints of  those  who  think  themselves  aggrieved  shall 
be  fully  made  known,  and  shall,  if  well  founded,  have 
due  effect  on  the  rulers  by  warning  them  to  remove  the 
grievances,  or  by  displacing  them  if  they  fail  to  do  so. 

How  constitutional  machinery  should  be  framed  and 
worked  for  the  attainment  of  the  two  former  objects 
enumerated  above,  viz.  the  establishment  of  a  proper 
frame  of  government  and  the  safeguarding  of  private 
rights,  is  a  matter  which  does  not  fall  within  the  scope 
of  our  present  inquiry.  The  third  object  does,  so  we 
have  to  ask  how  a  constitution  should  be  framed  in  order 
to  enable  it  to  maintain  and  strengthen  the  unity  of  a 
State. 

It  may  do  this  in  two  ways.  One  is  by  setting  various 
centripetal  forces  to  work.  The  other  is  by  preventing 
all  or  some  of  the  centrifugal  forces  from  working. 

I  have  already  enumerated  the  tendencies  or  influ- 
ences which  operate  to  draw  men  together  and  bind 
them  into  a  community,  be  it  greater  or  smaller,  and 
have  pointed  out  that  these  tendencies  may  in  any  given 
case  operate  in  favour  either  of  the  State  as  a  whole,  in 
which  case  they  preserve  it,  or  in  favour  of  some  group 
or  section  within  it,  in  which  case  they  sap  its  unity.  Let 
us  now  consider  how  the  constitutional  arrangements 
of  a  State  may  be  so  devised  as  to  draw  together  all  its 
members  and  all  the  minor  groups  within  it. 


232          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

The  most  generally  available  of  these  centripetal  ten- 
dencies is  trade,  that  interchange  of  commodities  which 
benefits  all  the  producers,  by  giving  them  a  market,  all 
the  consumers  by  giving  them  the  means  of  getting 
what  they  want,  all  the  middlemen  by  supplying  them 
with  occupation.  A  Constitution  can  render  no  greater 
service  to  the  unity  as  well  as  to  the  material  progress 
of  a  nation  than  by  enabling  the  freest  interchange  of 
products  to  go  on  within  its  limits.  Nothing  did  more 
to  keep  the  districts  of  each  of  the  great  European 
countries  divided  during  the  Middle  Ages  than  the  levy- 
ing of  tolls  along  the  rivers  and  highways  by  petty  po- 
tentates, or  than  the  insecurity  of  those  rivers  and  high- 
ways, as  well  as  the  want  of  good  roads,  for  thus  the 
market  for  the  producers  of  the  cheaper  articles  was 
narrowed  to  the  small  area  immediately  around  them, 
and  men  were  prevented  from  realizing,  or  benefiting 
by,  the  greatness  of  the  country  they  belonged  to.  Eng- 
land, with  an  exceptionally  strong  and  centralized  gov- 
ernment, suffered  less  from  these  tolls  and  this  insecu- 
rity than  did  the  large  States  of  the  Continent,  and 
England  arrived  at  unity  sooner  than  they  did.  And  so, 
conversely,  nothing  has  done  more  to  unify  the  vast  ter- 
ritories of  the  United  States  than  the  provisions  of  the 
Federal  Constitution  which  secure  perfect  freedom  of 
trade  within  its  limits,  and  empower  the  National  Gov- 
ernment to  regulate  the  means  of  communication^  be- 
tween the  several  States  of  the  Union.  So  the  Customs 
Union  of  the  Germanic  States^  formed  under  the  au- 
spices of  Prussia  in  A.D.  1829,  did  a  great  work  in  stimu- 
lating industry,  while  it  showed  the  people  the  benefits 
of  united  action,  and  prepared  the  way  for  the  formation 
of  the  new  German  Empire. 

Another  influence  of  moment  is  the  establishment  of 
a  common  law  and  a  common  system  of  courts.  It  is 
not  an  influence  which  can  be  reckoned  on  so  invariably 
or  confidently  as  can  the  influence  of  commerce,  for  any 
hasty  attempt  to  change  the  law  (whether  customary  or 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES          233 

statutory)  to  which  men  are  accustomed  may  provoke 
resistance  and  retard  the  growth  of  unity.  Great  Britain 
has  wisely  forborne  to  impose  her  own  law  on  the  do- 
minions she  has  acquired  by  conquest  or  purchase. 
Roman-Dutch  law  remains  in  South  Africa,  in  Ceylon, 
and  in  Guiana ;  Roman-French  law  in  Lower  Canada. 
So  the  French  Code  was  left  in  force  not  only  in  Alsace- 
Lorraine  which  Germany  took  in  1871  but  also  in  the 
German  country  all  along  the  left  bank  of  the  Lower 
Rhine,  when  that  region  was  reunited  to  Germany  in 
1814.  So  Roman  law  has  remained  in  Louisiana,  which 
was  once  French.  But  where  one  legal  system  can, 
without  exciting  resentment,  be  extended  over  the  whole 
of  a  country,  it  becomes  a  valuable  unifying  force.  As 
respects  the  substance  of  law,  this  happens  by  the  forma- 
tion of  certain  habits  of  thought  and  action,  certain  ideas 
of  justice  and  utility.  As  respects  the  administration  of 
law,  it  happens  by  giving  to  the  central  executive  an 
engine  for  making  its  power  felt,  and  usually  felt  for 
good.  In  the  Middle  Ages,  the  jurisdiction  of  the  king's 
courts  was  found  the  most  effective  means  both  in  Eng- 
land, from  Henry  II  onward,  and  (somewhat  later)  in 
France,  of  extending  the  power  of  the  central  govern- 
ment and  accustoming  the  people  to  rally  round  the 
Crown  as  the  representative  of  national  unity  as  well  as 
of  justice.  A  somewhat  similar  process  has  been  in  pro- 
gress during  the  last  thirty  years  among  those  petty 
principalities  which  we  call  the  Laos  States,  and  which 
lie  to  the  north  of  the  kingdom  of  Siam.  The  princes  of 
these  States  were  practically  independent,  living  in  a 
country  of  forests  and  hills,  and  recognizing  only  a  vague 
titular  suzerainty  as  vested  in  the  Siamese  king  at  Bang- 
kok. But  when  foresters  from  British  Burma  had  come 
among  them,  desiring  to  cut  down  and  export  the  teak 
trees  in  those  forests  which  make  their  only  wealth,  and 
when  disputes  had  arisen  between  the  Laos  chiefs  and 
these  timber  traders,  the  Government  of  India  found  it 
needful  to  make  treaties  with  the  king  of  Siam,  under 


234          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

which  a  Court  presided  over  by  Siamese  officials  was 
set  up  in  Chiengmai,  the  principal  State.  By  means  of 
this  Court  the  Siamese  Government  has  been  able  gradu- 
ally to  obtain  complete  control  of  the  forest  administra- 
tion and  the  revenues  thence  arising,  and  incidentally  to 
strengthen  its  general  authority  over  these  Laos  States. 

Similarly,  the  jurisdiction  of  the  British  Privy  Council 
as  a  Supreme  Court  of  Appeal  from  the  Colonies  and 
India,  and  the  action  of  the  Supreme  Court  of  the  United 
States  as  the  final  Court  of  Appeal  for  the  whole  Union 
(in  certain  classes  of  cases),  have  done  something  to 
make  the  members  of  these  vast  political  aggregates 
realize  the  bond  that  links  them  together.  In  the  case 
of  the  United  States,  respect  for  the  Federal  Courts  and 
the  keen  interest  with  which  their  development  of  the 
law  by  judicial  interpretation  is  followed  by  a  large  and 
powerful  profession  has  been  an  important  factor  in 
strengthening  the  sense  of  national  unity. 

After  law,  religion,  not  as  less  potent,  for  it  is  more 
potent,  but  as  more  uncertain,  because  it  has  been  as 
often  a  dissevering  as  a  unifying  influence.  There  is, 
however,  a  marked  distinction  between  the  earlier  and 
the  later  forms  of  religion  as  regards  the  energy  of  the 
force  they  exert.  In  the  earlier  stages  of  civilization, 
when  tradition  and  ritual  counted  for  much,  and  abstract 
theology  had  not  yet  come  into  being,  the  worship  of  the 
gods  of  the  nation  or  city  was  a  part,  a  necessary  and 
sometimes  the  most  deep-rooted  part,  of  the  political 
constitution  and  the  national  life.  In  Egypt  the  rise  or 
fall  of  a  great  deity  is  often  the  sign  of  the  rise  or  fall 
of  a  dynasty.  Moab,  Edom,  and  Ammon,  are  each  the 
people  of  a  peculiar  God.  After  the  Captivity,  when 
the  minor  Semitic  peoples  decline  or  vanish,  Israel  con- 
tinues to  be  held  together  by  the  name  of  Jehovah,  and 
by  the  Law  He  has  given.  Every  Greek  and  every  Ita- 
lian city  has  its  own  distinctive  public  State  worship.  A 
race  sometimes  pays  special  honour  to  one  out  of  its 
various  deities,  and  the  devotion  of  the  Dorians  to 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         235 

Apollo,  of  the  Athenians  to  the  Virgin  Goddess,  finds  a 
mediaeval  parallel  in  that  of  the  Swedes  to  Odin,  of  the 
Norwegians  to  Thor.  As  the  Roman  Empire  included 
so  many  races  and  cities  that  no  one  deity  or  group  of 
deities  could  be  worshipped  by  all,  altars  were  erected 
to  the  Goddess  Rome,  and  the  Guardian  Spirit  or  Genius 
of  the  reigning  Emperor  became  a  common  object  of 
devotion  for  the  whole  mass  of  his  subjects.  In  modern 
times  the  strong  religions  are  (except  Hinduism)  World 
Religions,  and  therefore  not  national  or  local  as  were 
those  of  antiquity.  But  they  exert  an  even  greater  po- 
litical power.  For  monotheistic  religions,  however  they 
may  develop  into  elaborate  rites  and  forms  of  ceremonial 
observance,  are  primarily  philosophical  religions,  in 
which  abstract  ideas  and  beliefs  take  not  only  a  firm  but 
an  exclusive  grasp  of  the  mind  and  heart  of  whosoever 
holds  them.  Hence  they  form  a  closer  tie  than  did  the 
worships  of  the  ancient  Italo-Hellenic  world.  Christian- 
ity created  a  new  cohesion  when  the  provinces  of  the 
Roman  Empire  were  beginning  to  fall  asunder.  Islam 
formed  a  prodigious  dominion  out  of  many  diverse  peo- 
ples. The  mutually  hostile  forms  of  a  World  Religion, 
such  as  the  Sunnite  and  Shiite  sects  in  Islam,  act  as  con- 
solidating or  dissevering  influences  just  as  the  religion 
itself  did  before  schisms  had  arisen.  When  a  faith 
grounded  in  peculiar  dogmas  or  observances  is  held  by 
one  section  of  a  people  and  hated  by  another  section, 
it  becomes  a  formidably  centrifugal  force.  When  the 
great  mass  of  a  people  have  embraced  such  a  faith,  their 
political  cohesion  is  strengthened,  and  they  may  attract 
from  other  communities  persons  or  groups  who  share 
their  beliefs.  The  same  principle  applies  to  beliefs 
which  cannot  be  called  religious,  but  which  exert  a 
similar  power  over  men's  emotions.  Even  where  no 
question  of  the  supernatural  is  involved,  the  holding  in 
common  of  certain  ideas  deemed  supremely  valuable 
whether  for  the  individual  or  for  society,  may  operate 
as  a  centrifugal  or  centripetal  force. 


236          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

A  nation  with  a  national  religion  which  all  or  nearly 
all  citizens  cherish  possesses  a  bond  of  unity  which  grows 
the  more  powerful  the  more  its  traditions  become  en- 
twined with  the  national  life.  It  is  chiefly  the  influence  of 
the  Orthodox  Church  that  has  made  a  people  so  low  in 
the  scale  of  civilization  as  Russia  was  three  centuries 
ago,  to-day  so  united,  so  strong  through  its  union,  and  so 
submissive  to  its  sovereign,  for  it  is  not  less  as  Head 
of  the  Church  than  as  a  secular  prince  that  the  Czar 
commands  the  reverence  of  his  subjects  1.  Accordingly, 
whenever  a  State  Church  can  be  set  up  which  embraces 
practically  the  whole  of  the  people,  and  when  it  can  be 
associated  with  the  government  and  the  movements  of 
public  life,  the  cohesion  of  the  nation  and  the  power  of 
the  government  which  controls  the  church  will  be  in- 
creased. Of  the  possibly  pernicious  influence  of  such 
arrangements  on  such  a  church  and  on  religion  I  do  not 
speak ;  that  is  quite  another  matter.  I  am  only  pointing 
out  that  a  Constitution  will  gain  strength,  and  a  nation 
unity,  if  the  ecclesiastical  arrangements  can  be  linked  to 
those  of  the  secular  government,  assuming  the  people 
to  be  all  attached  to  the  same  form  of  faith  and  worship. 

Similarly,  in  so  far  as  those  who  frame  a  Constitution 
can  make  it  provide  a  system  of  education  which  will 
give  the  people  common  ideas  and  common  aspirations, 
in  so  far  as  they  can  persuade  the  inhabitants  to  use  a 
common  language,  if  the  country  is  one  where  more  than 
one  tongue  has  been  spoken,  or  even  to  enjoy  and  meet 
for  the  enjoyment  of  common  festivities  and  games,  they 
will  be  availing  themselves  of  influences  not  to  be  de- 
spised. The  Prussian  Government  founded  the  Uni- 
versity of  Bonn  immediately  after  the  recovery  of  the 
left  bank  of  the  Rhine  from  France  in  1814,  and  the 
University  of  Strassburg  immediately  after  the  recovery 
of  Alsace  in  1871,  in  both  cases  with  the  view  of  bene- 

1  There  are  of  course  dissenting  sects  in  Russia,  some  of  them  counting  many 
adherents,  but  they  have  seldom,  and  in  no  large  measure,  affected  the  political 
unity  of  the  nation. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES          237 

fiting  these  territories  and  of  drawing  them  closer  to 
the  rest  of  the  country  by  the  afflux  of  students  from 
other  parts  of  it,  an  aim  which  was  realized.  Indeed  the 
non-local  character  of  the  German  Universities,  each 
serving  the  whole  of  the  lands  wherein  the  German 
tongue  was  spoken,  powerfully  contributed  to  intensify 
the  sentiment  of  a  common  German  nationality  through- 
out the  two  centuries  (1648  to  1870)  during  which  Ger- 
many had  virtually  ceased  to  be  a  State.  The  Olympian, 
Pythian,  Isthmian,  and  Nemean  games  had  no  con- 
temptible effect  in  fostering  the  sentiment  of  a  common 
national  unity,  as  against  the  barbarians,  among  the 
Greeks,  who  had  never  enjoyed  and  did  not  desire  politi- 
cal union.  The  admission  of  the  Macedonian  king  to 
strive  at  the  Olympian  games  was  a  political  event  of 
high  significance,  for  it  enabled  his  descendants  Philip 
and  Alexander  the  Great  to  claim  to  belong  to  the  Hel- 
lenic race. 

Some  of  these  various  engines  for  promoting  the  co- 
hesion of  a  nation  may  seem  to  lie  rather  in  the  sphere 
of  governmental  action  than  in  that  of  a  Constitution. 
Commercial  freedom,  however,  as  well  as  religious  com- 
pulsion on  the  one  hand,  or  religious  freedom  on  the 
other  hand,  have  been  provided  for  by  some  Rigid  Con- 
stitutions. So  too  has  been  the  use  of  certain  languages. 
Where  the  Constitution  is  a  Flexible  one,  the  question 
whether  the  laws  regulating  such  matters  are  to  be 
deemed  a  part  of  the  Constitution  depends  entirely  on 
the  practical  importance  ascribed  to  them,  since  in  such 
a  Constitution  there  is  no  distinction  of  form  between 
fundamental  and  other  provisions. 

IV.    How  CONSTITUTIONS  MAY   REDUCE  OR   REGULATE 
THE  CENTRIFUGAL  FORCES. 

Now  let  us  see  what  Constitutions  may  effect  in  the 
other  of  the  two  above  specified  ways,  viz.  what  they 
may  do  to  meet  and  grapple  with,  and  if  possible  disarm, 


238          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

the  tendencies  which  make  for  disruption,  i.e.  the  forces 
which,  while  drawing  men  together  in  minor  groups 
within  the  State,  are  as  regards  the  State  itself  centri- 
fugal forces. 

What  are  these  tendencies  ?  History  tells  us  that  the 
chief  among  them  are  race  feeling,  resentment  for  past 
injuries,  grievances  in  respect  of  real  or  supposed  ill- 
treatment  in  matters  of  industry,  or  of  trade,  or  of  edu- 
cation, or  of  language,  or  of  religion,  where  these  griev- 
ances or  any  of  them  press  on  a  part  only  of  the  popu- 
lation. If  they  press  on  the  whole  population,  or  on  the 
humbler  classes  as  a  whole,  they  are  perturbing,  but 
not  necessarily  nor  even  probably  disruptive,  i.e.  they 
threaten  disaffection  or  a  general  revolt  against  the  gov- 
ernment, rather  than  the  severance  of  a  particular  pro- 
vince or  the  secession  of  a  particular  section  of  the 
people.  It  is  only  with  grievances  which  affect  one  sec- 
tion or  district,  and  make  it  desire  an  independence  to 
be  obtained  by  separation,  that  we  have  here  to  deal. 
There  must  be  in  every  such  case  either  a  sentiment  of 
dislike  on  the  part  of  the  disaffected  section  towards  the 
rest  of  the  nation,  or  else  a  belief  that  great  material  ad- 
vantages will  be  obtained  by  separation ;  and  the  latter 
of  these  causes  is  almost  sure  to  produce  the  former. 
When  two  or  more  of  these  tendencies  combine  in  any 
given  case,  so  much  the  stronger  does  the  desire  for 
separation  become. 

A  few  illustrations  will  explain  better  than  a  long  ab- 
stract statement  what  I  desire  to  convey.  In  the  ancient 
world  the  thing  which  we  call  National  Sentiment  was 
seldom  a  powerful  factor,  perhaps  because  the  more  ad- 
vanced peoples  were  divided  into  small  city  communities, 
while  the  backward  peoples,  living  under  large  empires 
like  the  Persian  or  that  of  the  Seleucid  kings,  were 
allowed  to  retain  their  own  customs  and  religion,  and 
often  their  native  princes,  feeling  the  weight  of  subjec- 
tion only  in  having  to  pay  tribute  and  send  a  contingent 
in  war.  The  only  nations  that  gave  much  trouble  to  the 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         239 

Achaemenid  kings  of  Persia  were  the  Egyptians,  a  race 
very  peculiar  and  very  conceited,  and  the  Greeks  of  Asia 
Minor.  Under  the  Roman  Empire  there  were  wonder- 
fully few  national  revolts,  probably  because  the  imperial 
government  pressed  equally  upon  all,  conceded  rights  of 
citizenship  pretty  freely,  and  gave  the  subjects  in  ex- 
change for  their  own  national  sentiment  the  higher  pride 
of  belonging  to  the  majestic  World  State  which  had  en- 
gulfed them.  The  chief  source  of  disruptive  attempts 
lay  in  the  monotheistic  religions.  The  Jews  made  more 
than  one  obviously  hopeless  rebellion.  When  Chris- 
tianity became  the  religion  of  the  Empire,  schisms  and 
heresies  gave  trouble.  Africa  was  convulsed  by  the 
Donatist  movement.  Egypt  was  disaffected  owing  to 
Monophysitism,  and  no  doubt  gave  herself  the  more 
readily  to  the  Arab  conquerors  in  respect  of  this  dis- 
affection. The  persecuted  Montanist  sectaries  of  Phry- 
gia  revolted  in  the  sixth  century.  It  was  the  religious 
persecution  of  the  Fire-worshipping  Sassanid  kings  that 
provoked  their  Armenian  vassals  to  rebellion1.  So  in 
the  fifteenth  and  sixteenth  centuries,  the  sentiment  of 
nationality  having  not  yet  reached  its  full  strength,  it 
was  chiefly  by  religious  divisions  that  the  unity  of  States 
was  threatened.  This  was  what  lost  the  Dutch  Nether- 
lands to  Spain.  This  was  what  split  up  the  Romano- 
Germanic  Empire,  and  made  it,  after  the  Thirty  Years' 
War,  the  mere  shadow  of  a  State.  It  contributed  to 
keep  the  Highlanders  distinct  from  the  Lowland  popu- 
lation of  Scotland  after  the  Reformation  (though  other 
causes  also  were  at  work),  and  it  was  of  course  a  still 
more  potent  force  in  Ireland.  In  our  own  time  it  nearly 
rent  Switzerland  in  two  in  the  war  of  the  Sonderbund. 
Conversely,  any  one  who  notices  how  little  the  unity 
of  the  nation  has  been  threatened  in  Spain,  a  country 
where  the  populations  and  dialects  of  the  different  pro- 
vinces still  present  striking  contrasts,  and  are  accom- 

1  The  dualistic  Zoroastrianism  of  Persia  seems  to  have  taken  many  of  the  cha- 
racteristics of  a  monotheistic  religion. 


240          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

panied  by  diversities  of  character,  will  be  disposed  to 
attribute  this  fact  not  merely  to  the  absence  of  natural 
boundaries  between  the  provinces,  but  also  to  the  re- 
markable religious  unity  which  the  nation  has  always 
preserved. 

In  our  own  time,  while  religion  is  a  less  energetic 
factor,  what  is  called  national  sentiment  has  begun  to 
threaten  loosely  compacted  States.  It  compelled  the 
transformation  in  1868  of  the  so-called  Austrian  Empire 
into  the  present  Dual  Monarchy.  It  shakes  the  Austrian 
half  of  that  monarchy  now,  so  sharp  is  the  antagonism 
between  the  Czechs  of  Bohemia  and  the  other  Slavic 
populations  of  Cis-Leithania  and  the  Germans  of  the 
Western  and  South-Western  Crown  Lands.  Iceland 
differs  from  Denmark,  with  which  she  has  been  politi- 
cally united  since  I38o(or  1397), in  language, in  character, 
and  in  habits,  and  she  has  therefore  struggled  for  au- 
tonomy, a  large  measure  of  which  she  obtained  in  1874. 
She  has  had  some  economic  grievances,  but  sentiment 
has  been  an  even  stronger  element  in  her  discontent, 
which,  however,  stopped  short  of  a  wish  to  separate,  as 
she  feels  herself  too  small  to  stand  alone.  A  strong 
party  in  Norway  has  desired  to  be  divorced  from  Swe- 
den, to  which  she  was  unnaturally  yoked  in  1814  by  the 
Congress  of  Vienna,  not  merely  in  respect-  of  specific 
complaints  regarding  the  Foreign  Office  and  the  consu- 
lar service,  but  also  because  her  people,  though  Luther- 
ans like  the  Swedes,  are  far  more  democratic  in  ideas 
and  temper  than  the  latter,  and  because  their  high  na- 
tional pride  makes  them  unwilling  to  appear  to  be  in 
any  way  subordinate  to  the  sister  kingdom.  The  case 
of  Poland  is  a  simple  one,  because  she  has  the  memory  of 
an  independent  kingdom  destroyed  by  force  and  fraud, 
and  is  different  in  religion,  as  well  as  in  speech,  from  the 
Russians  who  have  annexed  her.  Had  the  peasant  popu- 
lation of  the  country  shared  the  patriotism  of  the  upper 
and  middle  classes,  Poland  might  possibly  have  suc- 
ceeded in  shaking  off  the  yoke.  Even  now  her  disaffec- 


AND   CENTRIFUGAL  FORCED         241 

tion  is  a  source  of  weakness  to  Russia.  In  Ireland 
several  currents  of  discontent  have  joined  to  produce  the 
passion  and  prolong  the  struggle  for  autonomy,  or,  in  a 
very  few  of  the  more  ardent  minds,  for  independence. 
There  is  the  diversity  of  faith,  which  remains,  though  that 
of  language  has  almost  vanished,  a  diversity  embittered 
by  recollections  of  persecution.  There  are  economic 
grievances,  the  memory  of  the  destruction  of  an  industry 
in  the  last  century,  the  more  urgent  resentment  at  the 
exactions  of  landlords,  and  the  peasants'  desire  to  have 
a  grip  of  the  soil.  There  is  an  incompatibility  of  cha- 
racter and  temperament,  due  partly  to  historical  condi- 
tions, partly  to  the  old  antagonism  of  Celt  and  Teuton. 
All  these  have  gone  to  create  a  passion  among  the  people 
to  be  recognized  as  a  nation  controlling  its  own  affairs, 
a  passion  which  is  the  same  in  essence  among  those  who 
would  be  content  with  the  possession  of  a  subordinate 
legislature,  and  those,  now  fewer  than  formerly,  who 
would  like  to  go  further. 

If  the  sources  of  the  centrifugal  force  in  Ireland  are 
easily  explicable,  and  indeed  so  strong  that  had  this  force 
acted  upon  the  whole  nation  instead  of  only  upon  a  ma- 
jority which  consists  mainly  of  the  poorer  and  weaker 
part  of  the  population,  it  would  have  before  now  pre- 
vailed, those  which  induced  the  secession  of  the  South- 
ern States  of  America  are  much  less  evident.  Here 
there  was  no  religious  factor,  nor  any  revengeful  feeling, 
nor  any  sense  of  an  unjust  or  oppressive  control.  The 
South  had  obtained  more  than  its  fair  share  of  power 
and  influence  in  the  councils  of  the  Union.  But  the 
planters  had  persuaded  themselves  that  property  in 
slaves  and  the  whole  slave-holding  system  were  threat- 
ened by  the  growing  strength  in  the  Northern  and  West- 
ern States  of  an  aversion  to  slavery,  with  a  determina- 
tion to  check  its  extension ;  and  the  irritation  of  feeling 
which  a  long  struggle  had  engendered,  coupled  with  a 
growing  dissimilarity  of  habits  and  ideas,  enabled  the 
hot-headed  oligarchy  which  controlled  the  Southern 
16 


242          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

population  to  drive  it  into  separation.  Possibly  these 
causes  would  not  have  been  strong  enough  to  provoke 
an  armed  conflict  in  a  unified  country.  It  was  the  exist- 
ence of  State  Governments,  and  the  conviction  that  the 
rights  of  the  States,  supposed  to  be  guaranteed  by  the 
Constitution,  furnished  a  legal  basis  for  secession,  that 
spurred  the  South  into  its  desperate  venture. 

What  then  can  the  framing,  or  the  manipulation  in 
working,  of  a  Constitution  do  to  reduce  the  power  of 
such  disruptive  tendencies  as  we  have  been  considering? 

They  may  of  course  be  resisted  by  the  employment 
of  physical  force.  If  a  government  is  sufficiently  strong 
and  resolute,  and  is  supported  by  the  great  majority  of 
the  nation,  it  may  crush  down  the  discontent  of  a  pro- 
vince or  a  section.  It  is  however  an  axiom  in  free  gov- 
ernments, and  ought  to  be  an  axiom  in  all  governments, 
that  physical  force  should  never  be  used  when  peaceful 
means  will  suffice.  Coercion  usually  seems  easier,  and 
naturally  commends  itself  to  the  dull,  the  impatient,  and 
the  violent,  to  imperious  princes,  arrogant  ministers,  and 
excited  majorities.  But  coercion,  besides  being  a  fatal 
expedient  if  it  fails,  is  often  a  bad  expedient  when  it  ap- 
pears to  succeed,  for  it  leaves  smouldering  discontent 
behind  among  the  vanquished,  and  it  is  apt  to  inflict  a 
moral  injury  upon  the  victors,  perhaps  to  warp  for  the 
future  their  frame  of  government  and  to  lower  their  po- 
litical traditions.  Accordingly  whenever  a  Constitution 
can  be  so  drawn  and  worked  as  to  give  the  disjunctive 
tendencies  just  so  much  recognition  as  may  disarm  their 
violence,  -and  bring  all  sections  of  the  nation  and  all 
parts  of  the  country  to  acquiesce  in  unity  under  one  gov- 
ernment, this  course  is  to  be  preferred.  It  may  some- 
times fail.  Every  expedient  may  fail.  But  it  has  gene- 
rally more  promise  of  ultimate  success  than  force  has, 
for  in  a  free  country  force  is  not  a  remedy,  but  a  confes- 
sion of  past  failures  and  a  postponement  of  dangers 
likely  to  recur. 

Among  the  methods  which  a  Constitution  may  em- 


CENTRIPETAL  AND   CENTRIFUGAL  FORCE*          243 

ploy  for  the  purpose  indicated,  the  following  find  a 
place. 

It  may  enact  certain  securities  against  oppression, 
whether  by  the  executive  or  by  the  legislature,  giving 
to  such  securities  a  specially  solemn  sanction,  and  thus 
reassuring  the  minds  of  the  citizens.  This  was  done  by 
Magna  Charta,  by  the  Petition  of  Right,  and  again  by 
the  American  Federal  and  State  Constitutions,  and  by 
the  French  Declaration  of  the  Rights  of  Man  of  1789. 
It  is  usually  done  for  the  protection  of  all  subjects  or  citi- 
zens alike,  but  of  course  the  benefit  of  such  a  protection 
enures  with  special  value  for  any  section  of  the  popula- 
tion, or  any  province  or  group  of  provinces,  likely  to  be 
specially  exposed  at  any  given  time  to  the  abuses  of 
power,  because  they  are  a  minority  whom  the  Govern- 
ment, or  the  majority,  may  view  with  disfavour. 

A  Constitution  may  provide  means  for  varying  the 
general  institutions  or  laws  of  the  State  in  such  a  way 
as  to  exempt  particular  parts  of  the  State  from  any  legis- 
lation that  might  be  opposed  to  their  special  interests  or 
feelings.  The  retention  of  Scotland  as  a  distinct  king- 
dom after  the  union  of  the  crowns  in  1603,  and  as  a  dis- 
tinct part  of  the  United  Kingdom  after  the  Treaty  and 
Act  of  Union  in  1707,  has  had  most  beneficial  effects  in 
enabling  Scotland  to  be  treated  separately  where  it  is 
fitting  she  should  be.  Her  faith,  her  laws  and  judicature, 
her  system  of  local  government,  have  remained  almost 
intact,  to  the  satisfaction  of  her  people,  and  with  no  in- 
jury to  the  cohesion  of  the  united  monarchy  l.  Similarly 
the  maintenance  of  Finland  as  a  separate  Grand  Duchy, 
with  her  own  tongue,  religion,  laws  and  privileges,  gua- 
ranteed by  the  coronation  oath  of  the  Czar,  has  made 
the  Finns  loyal  and  contented  subjects,  and  has  in  no 
wise  detracted  from  the  strength  of  Russia  2.  The  cases 

1  Though  it  must  be  admitted  that  the  passing  of  legislation  disapproved  by 
the  majority  of  Scotch  representatives,  or  the  omission  to  pass  legislation  which 
they  demand,  often  elicits  murmurs. 

2  This  wise  policy  seems  unfortunately  to  be  now  (1900)  on  the  point  of  being 
abandoned,  with  results  which  every  lover  of  freedom  and  progress  must  regret. 


344          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

of  Hungary  as  towards  the  Austrian  Monarchy,  and  of 
Croatia  as  towards  Hungary,  are  also  in  point. 

It  may  provide  for  relegating  certain  classes  of  affairs 
to  local  legislatures,  such  as  those  of  Croatia  or  Finland, 
areas  which  are  not  only,  like  Scotland,  political  divi- 
sions retaining  their  old  laws,  but  also,  unlike  Scotland, 
since  the  Union,  communities  enjoying  local  autonomy. 
All  Federations  are  managed  on  this  system ;  and  one 
can  see  in  the  case  of  Canada  the  advantages  it  secures, 
for  the  Roman  Catholics  of  Quebec  are  able  to  have 
legislation  diverse  from  that  which  the  Protestant  ma- 
jority desires  in  the  other  provinces  of  the  Dominion. 

It  may  assign  certain  administrative  and,  within  limits, 
certain  legislative  functions  also  to  the  inhabitants  of 
minor  local  areas,  such  as  counties,  empowering  them 
to  regulate  their  local  affairs  in  their  own  way.  Pro- 
visions of  this  nature  are  not  usually  embodied  in  Euro- 
pean constitutional  instruments.  They  are,  however,  to 
be  found  in  the  State  Constitutions  of  the  American 
States.  And  they  are  really,  in  substance,  parts  of  any 
well-framed  Constitution,  for  nothing  contributes  more 
to  the  smooth  working  of  a  central  government  and  to 
the  satisfaction  of  the  people  under  it,  than  the  habit  of 
leaving  to  comparatively  small  local  communities  the 
settlement  of  as  many  questions  as  possible.  The  prac- 
tice of  local  self-government  and  the  love  for  it  are  not  a 
centrifugal  force,  but  rather  tend  to  ease  off  any  friction 
that  may  exist  by  giving  harmless  scope  for  independent 
action,  and  thus  producing  local  contentment.  It  is  only 
where  there  exist  grievances  fostering  disruptive  senti- 
ments that  the  existence  of  local  bodies  with  a  pretty 
large  sphere  of  activity  need  excite  disquiet. 

It  may  exclude  certain  matters  altogether  from  the 
competence  of  the  central  government,  and  thereby  keep 
them  out  of  the  range  of  controversy.  This  principle 
has  been  wisely  followed  in  the  American  and  Canadian 
and  Swiss  Federal  Constitutions  as  regards  religion  in 
its  relations  to  the  State.  In  some  federations  it  has 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES          245 

been  similarly  found  desirable  to  disable  the  several 
legislatures  from  dealing  with  topics  likely  to  produce 
dissensions  among  the  members  of  the  federation,  or 
otherwise  to  affect  the  cohesion  of  the  nation.  Thus  in 
the  United  States  no  State  legislature  can  impose  any 
duties  on  goods  brought  from  one  State  to  another,  nor 
in  any  wise  interfere  with  commerce  between  the  States. 

By  these  means  a  Constitution  may  prevent  the  dis- 
ruptive forces  in  a  country  from  threatening  the  stability 
of  the  central  government  or  the  unity  of  the  State.  To 
remove  part  of  the  material  on  which  they  might  work 
is  to  weaken  their  working,  and  to  divert  into  safe  chan- 
nels the  political  activity  they  would  evoke.  Although  a 
Flexible  Constitution  may  accomplish  this,  if  those  who 
work  it  respect  certain  fundamental  principles  and  treat 
their  querulous  minorities  in  a  conciliatory  spirit,  the 
work  is  best  done,  and  usually  has  been  done,  by  a  Rigid 
Constitution,  because  this  latter  provides  a  guarantee 
to  minorities,  or  to  subdivisions  of  the  country,  stronger 
than  they  can  have  under  an  omnipotent  legislature.  In 
fact  the  existence  of  the  grounds  of  contention  and  possi- 
bilities of  disruption  we  have  been  considering  is  among 
the  chief  causes  which  have  called  Federal  Governments 
and  Rigid  Constitutions  into  being. 

One  further  observation  should  be  made  before  quit- 
ting this  part  of  the  subject.  Racial  differences  and  ani- 
mosities, which  have  played  a  large  part  in  threatening 
the  unity  of  States,  are  usually  dangerous  only  when  the 
unfriendly  races  occupy  different  parts  of  the  country. 
If  they  live  intermixed,  in  tolerably  equal  numbers,  and 
if  in  addition  they  are  not  of  different  religions,  and 
speak  the  same  tongue,  the  antagonism  will  disappear  in 
a  generation  or  two  by  social  intercourse  and  especially 
by  intermarriage.  When  the  right  of  full  legal  inter- 
marriage had  been  established,  the  fusion  of  the  patri- 
cians and  the  plebs  at  Rome  began.  So  the  Northmen 
in  the  tenth  and  eleventh  centuries,  so  the  Norman- 
French  in  the  eleventh  and  twelfth  centuries,  became 


246         CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

blent  with  the  English.  The  Magyars  and  Saxons, 
though  generally  occupying  different  parts  of  the 
country,  and  to  some  extent  retaining  each  their  own 
speech,  have  in  Transylvania  now  begun  to  melt  into 
one.  It  is  the  fact  that  they  not  only  speak  a  different 
tongue  but  also  profess  a  different  faith  that  keeps  the 
Rumans  of  that  province  apart  from  both  Saxons  and 
Magyars ;  and  even  these  differences  might  in  time  cease 
to  operate  did  not  these  Rumans  look  across  the  moun- 
tains to  a  large  Ruman  State  into  which  they  would 
gladly  be  absorbed.  But  in  one  set  of  cases  no  fusion 
is  possible ;  and  this  set  of  cases  forms  the  despair  of  the 
statesman.  It  presents  a  problem  which  no  Constitu- 
tion has  solved.  It  is  the  juxtaposition  on  the  same  soil 
of  races  of  different  colour. 

This  is  a  recent  phenomenon  in  history.  In  the  an- 
cient world,  almost  all  the  barbarous  tribes  whom  Rome 
subdued  and  brought  into  her  Empire  were  sufficiently 
near  the  Italians  and  Hellenized  Asiatics  in  physical 
characteristics  for  intermarriage  to  go  on  freely.  The 
Carthaginians,  who  to  be  sure  were  not  numerous,  seem 
to  have  soon  lost  their  distinctive  nationality :  and  that 
the  Jews  remained  distinct  was  their  own  doing,  not  that 
of  the  conquerors1.  Even  as  towards  Egyptians  and 
Numidians,  who  were  certainly  dark,  one  hears  of  little 
repulsion.  Besides,  both  races  were  intelligent,  and  the 
former  in  their  way  highly  civilized.  With  the  African 
slave  trade  a  new  and  a  dolorous  chapter  in  history 
opens.  In  our  own  time  it  is  the  settlement  of  Euro- 
peans in  countries  where  the  native  holds  his  ground 
against  the  settler,  as  the  Kafir  does  in  South  Africa,  and 
the  aboriginal  Peruvians  and  Araucanians  do  in  Western 
South  America,  or  it  is  the  influx  of  coloured  immi- 
grants, like  that  of  the  Chinese  in  Western  America  and 
the  Hawaiian  Isles,  that  raises,  or  threatens  to  raise  in 

1  In  two  respects  the  Jews  under  the  early  Empire  would  seem  to  have  been 
above  the  average  level  of  the  civilized  subjects  of  Rome.  There  was  apparently 
very  little  slavery  among  them  ;  and  there  must  have  been  an  exceptionally  large 
proportion  of  persons  able  to  read. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES          247 

the  future,  this  problem  in  an  acute  form.  A  community 
in  which  there  exist  two  or  more  race-elements  physi- 
cally contrasted  and  socially  unsusceptible  of  amalgama- 
tion cannot  grow  into  a  really  united  State.  If  the 
coloured  people  are  excluded  from  political  rights,  there 
is  created  a  source  of  weakness,  possibly  of  danger.  If. 
they  are  admitted,  there  is  admitted  a  class  who  cannot 
fully  share  the  political  life  of  the  more  civilized  and 
probably  smaller  element,  who  will  not  be  consoled  by 
political  equality  for  social  disparagement,  and  who  may 
lower  the  standard  of  politics  by  their  incompetence  or 
by  their  liability  to  corruption.  If  the  people  of  colour 
are  dispersed  over  the  country  among  the  Europeans, 
instead  of  dwelling  in  masses  by  themselves,  they  may 
not  act  as  a  centrifugal  force,  threatening  secession,  but 
they  are  a  serious  hindrance  to  the  working  of  any  form 
of  popular  government  that  has  been  hitherto  devised, 
for  they  divide  the  population,  they  complicate  political 
issues,  they  prevent  the  growth  of  a  genuinely  national 
opinion. 

The  most  noteworthy  attempts  that  Constitutions 
have  made  to  deal  with  these  cases  have  been  made  in 
the  United  States,  where  the  latest  amendments  to  the 
Federal  Constitution  provide  protection  for  the  negroes 
and  forbid  the  States  to  exclude  any  person  from  the 
electoral  suffrage  in  respect  of  race  or  colour,  and  where 
several  recent  State  Constitutions  have  devised  inge- 
nious schemes  for  disfranchising  the  vast  mass  of  those 
whom  these  very  amendments  have  sought  to  protect. 
So  far  as  political  rights  are  concerned,  the  problem  is 
very  far  from  having  been  solved  in  the  United  States. 
But  as  regards  private  civil  rights,  it  has  certainly  been 
an  advantage  to  the  negroes  that  the  Federal  Constitu- 
tion guarantees  such  rights  to  all  citizens :  and  probably 
in  any  country  where  marked  differences,  with  possible 
antagonisms,  of  race  exist,  it  will  be  prudent  to  place  the 
private  civil  rights  of  every  class  of  persons  under  the 
equal  protection  of  the  laws,  and  to  make  the  rights 


248          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

themselves  practically  identical.  It  would  lead  me  too 
far  from  the  main  subject  to  describe  the  ways  in  which 
similar  problems  have  been  dealt  with  in  Algeria,  in 
South  Africa,  and  in  some  of  the  other  colonies  of  Euro- 
pean nations.  Nowhere  has  any  quite  satisfactory  solu- 
tion been  found  1.  But  the  case  of  New  Zealand  deserves 
to  be  mentioned  as  one  in  which  the  experiment  has 
been  tried  of  giving  parliamentary  representation  to  the 
natives,  who  mostly  live  apart  on  their  own  reserved 
lands.  So  far,  the  results  have  been  good.  The  condi- 
tions are  favourable,  for  the  Maoris  are  a  brave  and  in- 
telligent race,  and  they  are  now  too  few  in  number  to 
excite  disquiet. 

It  was  the  good  fortune  of  the  Roman  Empire  that 
the  vast  majority  of  the  races  whom  it  conquered  and 
absorbed  had  no  conspicuous  physical  differences  from 
the  Italians  which  prevented  intermarriage  and  fusion. 
Race  and  birthplace  were  no  great  obstacle  to  a  man 
of  force.  Two  or  three  of  the  Emperors  were  of  African 
or  Arab  extraction.  Moreover,  the  peoples  of  Southern 
Europe  seem  to  have  less  repulsion  of  sentiment  towards 
the  dark-skinned  races  than  the  Teutons  have.  The 
Spanish  and  Portuguese  intermarry  not  only  with  the 
native  Indians  of  Central  and  Southern  America,  but 
also  with  the  negroes.  The  French  of  Canada  inter- 
married more  freely  with  the  Indians  of  North  America 
than  the  English  have  done. 

Summing  up,  we  may  say  that  the  aim  of  a  well- 
framed  Constitution  will  presumably  be  to  give  the 
maximum  of  scope  to  the  centripetal  and  the  minimum 
to  the  centrifugal  forces.  But  this  presumption  is  sub- 
ject to  two  countervailing  considerations.  One  is  that 
the  energy  of  civic  life  may  be  better  secured  by  giving 
ample  range  and  sphere  of  play  to  local  self-govern- 
ment, which  will  stimulate  and  train  the  political  interest 
of  the  members  of  the  State,  and  relieve  the  central  au- 

1  In  Algeria  the  electoral  suffrage  is  limited  ;  but  in  some  of  the  French  tropical 
colonies  it  seems  to  have  been  granted  irrespective  of  colour. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES          249 

thority  of  some  onerous  duties.  The  other  is  that  the 
centrifugal  forces  may,  if  too  closely  pent  up,  like  heated 
water  in  the  heart  of  the  earth,  produce  at  untoward  mo- 
ments explosions  like  those  of  a  volcano.  Hence  it  is 
well  to  provide,  in  the  Constitution,  such  means  of  escape 
for  the  steam  as  can  be  made  compatible  with  the  general 
safety  of  the  State.  Where  a  Constitution,  and  espe- 
cially a  Rigid  Constitution,  has  been  framed  with  due 
regard  to  these  considerations,  and  turns  to  account  the 
methods  already  discussed,  it  may  itself  become  a  new 
centripetal  force,  a  factor  making  for  the  unity  and  co- 
herence of  the  community  which  lives  under  it.  The 
Rigid  Constitution  has  in  this  respect  one  advantage 
over  the  Flexible  one,  that  it  is  more  easily  understood 
by  the  mass  of  the  people,  and  more  capable  of  coming 
to  form  a  part  of  their  political  consciousness.  When 
such  a  Constitution  is  so  contrived  and  worked  as  to 
satisfy  the  bulk  of  the  nation — and  it  will  do  so  all  the 
more  if  no  single  section  dislikes  it — it  attracts  the  affec- 
tion and  pride  of  the  people,  their  pride  because  it  is 
their  work,  their  affection  because  they  enjoy  good  gov- 
ernment under  it.  Time,  if  it  does  not  weaken  these 
feelings,  strengthens  them,  because  reverence  comes 
with  age.  By  providing  a  convenient  channel  or  medium 
through  or  in  which  the  centripetal  forces  may  act,  the 
Constitution  increases  the  effective  strength  of  those 
forces.  It  is  a  reservoir  of  energy,  an  accumulator,  if 
the  comparison  be  permissible,  which  has  been  charged 
by  a  dynamo,  and  will  go  on  for  some  time  discharging 
the  energy  stored  up  in  it.  But,  like  an  accumulator,  its 
energy  becomes  exhausted  if  there  is  not  behind  it  an 
engine  generating  fresh  power,  that  is  to  say,  if  the  real 
social  and  political  forces  which  called  it  into  being  have 
become  feebler,  and  those  which  oppose  it  have  become 
stronger. 


250          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

V.     ILLUSTRATIONS  FROM  MODERN  HISTORY  OF  THE 
ACTION  OF  CONSTITUTIONS. 

The  best  instance  of  the  capacity  of  a  Constitution  to 
reinforce  and  confirm  existing  centripetal  tendencies  is 
supplied  by  the  history  of  the  Rigid  Constitution  of  the 
United  States.  That  instrument  was  at  first  received 
with  so  little  favour  by  the  people  that  its  ratification 
was,  in  many  States,  obtained  with  the  greatest  possible 
difficulty,  and  the  original  document  secured  acceptance 
only  on  the  understanding,  which  was  loyally  carried  out, 
that  it  should  forthwith  receive  a  number  of  amend- 
ments. Within  fifteen  years  the  party  which  had  advo- 
cated it  was  overthrown  in  the  country,  and  ultimately 
broke  up  and  vanished.  A  generation  passed  away  be- 
fore it  began  to  be  generally  popular.  But  after  a  time 
it  secured  so  widespread  a  respect  that  even  during  the 
fierce  and  protracted  struggle  which  ushered  in  the  Civil 
War  few  attacked  the  Constitution  itself,  nearly  all  the 
combatants  on  one  side  or  the  other  claiming  that  its 
provisions  were  really  in  their  favour.  It  was  not  round 
the  merits,  but  round  the  true  construction,  of  the  instru- 
ment that  controversy  raged.  Since  the  Civil  War,  and 
the  amendments  which  embodied  the  results  of  the  Civil 
War,  it  has  been  glorified  and  extolled  in  all  quarters  1, 
and  has  unquestionably  been  a  most  potent  influence  in 
consolidating  the  nation,  as  well  as  in  extending  the 
range  and  the  activity  of  the  central  government. 

To  what  is  this  success  due?  Regarded  as  a  Frame 
of  Government,  i.e.  as  a  piece  of  mechanism  for  dis- 
tributing powers  between  the  Executive,  the  Legislature 
and  the  Judiciary,  the  American  system  has  probably 
been  praised  beyond  its  deserts.  Both  the  mode  of  elect- 
•  ing  the  President  and  the  working  of  Congress  leave 
much  to  be  desired.  But  the  Constitution  has  had  two 
conspicuous  merits.  It  so  judiciously  estimated  the 

1  Only  since  1890  have  complaints  begun  to  be  made :  see  Essay  III,  p.  202, 
ante. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         251 

centripetal  and  centrifugal  forces  as  they  actually  stood 
at  the  time  when  it  was  framed,  frankly  recognizing  the 
latter  and  leaving  free  play  for  them,  and  while  throwing 
its  own  weight  into  the  scale  of  the  centripetal,  doing 
this  only  so  far  as  not  to  provoke  a  disjunctive  reaction, 
that  it  succeeded  in  winning  respect  from  the  advocates 
both  of  States'  Rights  and  of  National  Unity  *.  Thus  it 
was  able  to  add  more  strength  to  the  centripetal  ten- 
dency than  it  could  have  done  had  it  been  originally 
drawn  on  more  distinctly  centripetal  lines.  For — and 
here  comes  in  the  second  merit — its  provisions  defining 
the  functions  of  the  central  Government  were  expressed 
in  such  wide  and  elastic  terms  as  to  be  susceptible  of 
interpretation  either  in  a  more  restricted  or  in  a  more 
liberal  way,  i.e.  so  as  to  allow  either  a  less  wide  or  a 
more  wide  scope  of  action  for  the  Central  Government. 
During  the  earlier  years,  when  State  sentiment  was  still 
stronger  than  National  sentiment,  the  scope  remained 
limited,  because  both  the  executive  and  the  legislature 
wished  to  keep  it  so,  and  such  extensions  as  there  were 
came  from  judicial  construction.  But  latterly,  and  espe- 
cially since  the  prodigious  development  of  internal  com- 
munications has  stimulated  commerce,  and  since  the 
death  blow  given  to  States'  Rights  doctrines  by  the  Civil 
War,  the  scope  has  been  widened,  and  has  widened  quite 
naturally  and  gradually,  with  no  violence  to  the  words  of 
the  Constitution,  but  according  to  that  expansive  inter- 
pretation of  them  which  changing  conditions  and  a  cor- 
responding change  in  national  sentiment  prescribed  2. 

Nowadays  one  hears  in  the  United  States  less  about 
the  Constitution  than  about  the  Flag3.  But  that  is 

1  It  has  been  accused  of  having  caused  a  civil  war  by  omitting  to  deal  with 
the  questions  out  of  which  the  Civil  War  arose,  and  by  failing  to  negative  the 
right  of  secession.  But  to  this  it  may  be  answered  that  an  attempt  to  deal  with 
those  questions  or  to  negative  that  right  might  possibly  have  prevented  it  from 
having  ever  been  accepted. 

3  This  interpretation  has  sometimes  been  at  variance  with  the  views  of  the 
older  interpreters,  but  no  instance  occurs  to  me  in  which  an  impartial  jurist  could 
have  pronounced  it  inadmissable. 

3  This  is  still  more  so  to-day  (1900)  than  it  was  when  this  Essay  was  first  com- 
posed. 


252          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

partly  because  the  Constitution  has  done  its  work,  and 
made  the  Flag  the  popular  badge  of  an  Unity  which  it 
took  nearly  a  century  to  endear  to  the  nation. 

One  might  go  on  to  illustrate  the  efficiency  of  a  Con- 
stitution in  consolidating  a  people  composed  of  dispa- 
rate elements  from  the  parallel  case  of  Switzerland, 
where  communities  speaking  three  (it  might  almost  be 
said  four)  different  languages  have  been  brought  much 
closer  together  by  the  Constitutions  of  1848  and  1874 
than  they  were  before,  or  could  have  been  without  some 
such  arrangement.  Switzerland,  however,  is  a  more 
complicated  case,  because  much  has  turned  on  the  ex- 
ternal pressure  towards  unity  exerted  by  the  fear  felt  for 
several  great  bordering  Powers.  The  formidable  neigh- 
bours of  the  Confederation  have,  so  to  speak,  squeezed 
together  into  a  Swiss  people  the  originally  dissimilar 
Alemannic,  Celto-Burgundian,  Italian,  and  Romansch 
communities. 

The  two  instances  of  the  United  States  and  Switzer- 
land1, compared  with  those  of  unitary  countries  living 
under  Rigid  Constitutions,  such  as  France,  Belgium, 
Holland  and  Denmark,  suggest  the  observation  that 
the  service  which  Rigid  Constitutions  may  render  in 
strengthening  the  centripetal  tendency  can  best  be  ren- 
dered where  a  Federation  is  to  be  constructed.  For  in 
these  cases  what  is  needed  is  an  arrangement  by  which 
the  several  rights  of  the  component  communities  which 
are  to  form  the  State  may  be  so  protected  that  they 
need  not  fear  to  give  their  allegiance  to  the  State  and 
cordially  support  its  Central  Government.  The  exist- 

1  One  would  like  to  refer  to  the  cases  of  the  numerous  so-called  republics,  most 
of  them  federal,  of  Spanish  America.  But  apart  from  the  difficulty  of  ascertain- 
ing their  constitutional  history,  little  of  which  has  been  written,  some  of  these  re- 
publics seem  to  pay  so  little  regard  to  their  constitutions,  living  generally  in  a 
state  of  revolution,  whether  subsiding,  or  actually  raging,  or  apprehended,  like 
the  Atlantic  during  a  series  of  cyclones  following  one  another  along  the  same 
track  from  the  Bermudas  to  the  Fastnet,  that  it  is  hard  to  draw  any  conclusions 
of  value  from  them.  They  are  in  fact  republics  only  in  name :  and  it  is  surprising 
that  Sir  H.  Maine  in  his  Popular  Government  condescended  to  go  to  them  for 
arguments  to  discredit  democracy.  They  are  military  tyrannies,  the  product  of 
peculiar  historical,  territorial  and  racial  conditions. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCI-:*         253 

ence  of  such  communities  is  an  expression  of  forces 
actually  operative  which  are  centrifugal  as  towards  the 
State  as  a  whole,  and  therefore  need  to  be  studied.  By 
giving  a  carefully  limited  scope  to  these  forces,  and 
thereby  diminishing  their  possibilities  of  danger,  the 
Constitution  subserves  the  cohesion  of  the  States.  In  a 
truly  unitary  country  this  service  is  not  needed.  But 
there  are  cases  in  which  States  endeavouring  to  become 
unitary  would  have  done  better  had  they  sought  to  apply 
the  federal  principle,  placing  it  under  the  protection  of 
a  Rigid  Constitution.  I  have  already  referred  to  Den- 
mark. Holland  might  probably  have  saved  Belgium 
by  a  concession  of  some  such  kind.  Whether  a  similar 
contrivance  might  not  have  been  profitably  employed 
within  the  British  Isles  in  A.D.  1782,  or  in  A.D.  1800,  or 
again  later,  is  a  question  which  will  already  have  pre- 
sented itself  to  one  who  has  followed  the  argument  thus 
far. 

In  dwelling  upon  the  services  which  Constitutions 
may  render,  by  fostering  the  centripetal  forces,  or  by 
restraining  the  violence  and  softening  the  action  of  the 
centrifugal  forces,  we  must  not  forget  that  no  scheme  of 
government  can  hope  permanently  to  resist  the  action 
of  either  tendency  if  either  develops  much  greater 
strength  than  it  possessed  when  the  Constitution  was 
framed.  If  the  centripetal  forces  grow,  the  Constitution 
whose  provisions  have  recognized  and  given  scope  to 
the  centrifugal  will  be  practically,  in  some  of  those  pro- 
visions, superseded.  If  the  centrifugal  grow,  it  may  be 
overthrown.  It  is  where  the  forces  are  nearly  balanced, 
that  the  weight  of  the  Constitution  may  turn  the  scale, 
and  avert  conflicts  which  would  have  rent  the  commu- 
nity, or  caused  a  violent  subjection  of  one  part  of  it  to 
the  other.  And  in  any  case  the  Constitution  ought, 
where  dissimilative  and  disruptive  forces  are  feared,  to 
be  so  drawn  as  to  enlist  all  available  motives  of  interest, 
to  shelter  the  law  behind  popular  sentiment  where  pos- 
sible, to  oppose  it  to  sentiment  as  little  as  possible,  and 


354          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

to  avoid  challenging  at  the  same  time  the  hostility  of 
several  kinds  of  sentiment. 

VI.    THE  PROBABLE  ACTION   OF   THE  AGGREGATIVE  AND 
THE  DISJUNCTIVE  TENDENCIES  IN  THE  FUTURE. 

Whether  in  the  long  run  it  is  the  centripetal  or  the 
centrifugal  force  that  will  prevail  in  politics,  or,  in  other 
words,  whether  large  States  or  small  States  are  more 
likely  to  commend  themselves  to  mankind,  is  a  question 
which  belongs  rather  to  history  than  to  the  doctrines  of 
constitutions,  and  which  could  be  adequately  discussed 
only  after  a  long  investigation.  History  shows  us  first 
one  force  dominant,  then  the  other,  though  no  doubt 
the  centrifugal  is  usually  more  powerful  in  rude  times 
and  in  hilly  or  mountainous  countries,  the  centripetal 
in  countries  comparatively  advanced  in  civilization,  and 
in  level  and  fertile  regions  where  wealth  is  more  easily 
acquired  and  stored,  and  where  military  operations  are 
easier.  When  the  mists  of  antiquity  begin  to  rise  suffi- 
ciently to  show  us  the  Mediterranean  and  south-west 
Asiatic  world,  we  discover  both  a  few  great  States  and  a 
multitude  of  small  ones.  The  former  have  a  low,  the 
latter  a  high  and  intense  political  vitality.  From  the 
time  of  Menes  down  to  that  of  Attila  the  tendency  is 
generally  towards  aggregation:  and  the  history  of  the 
ancient  nations  shows  us,  not  only  an  enormous  number 
of  petty  monarchies  and  republics  swallowed  up  in  the 
Empire  of  Rome,  but  that  empire  itself  far  more  highly 
centralized  than  any  preceding  one  had  been.  When  the 
Roman  dominion  began  to  break  up  the  process  was 
reversed,  and  for  seven  hundred  years  or  more  the  cen- 
trifugal forces  had  it  their  own  way.  Europe  and  West- 
ern Asia  were  divided  up  among  innumerable  petty  po- 
tentates, and  even  the  large  monarchies,  such  as  the  two 
Khalifates,  the  Romano-Germanic  Empire,  the  king- 
doms of  France  and  Hungary,  possessed  so  feeble  a 
royal  authority  that  the  real  organs  of  government  and 


CEM'inri:r\L  AND  CENTRIFUGAL  FORM*       255 

centres  of  attraction  were  to  be  sought  rather  in  the 
vassals  than  in  the  nominal  sovereign.  From  the  thir- 
teenth century  onwards  the  tide  begins  to  set  the  other 
way.  One  great  State  indeed — the  Empire — first  decays 
and  then  disappears  under  the  action  of  centrifugal 
forces,  but  all  the  other  chief  States  expand,  absorbing 
their  smaller  neighbours,  and  giving  themselves  a  com- 
pact and  well-knit  organization  which  makes  the  central 
power  effective  through  the  whole  sphere  of  its  action. 
This  process  culminates  in  the  despotic  monarchies  of 
the  eighteenth  century,  when  the  strength  of  feudal  lo- 
calism has  been  completely  broken,  though  the  pic- 
turesque relics  of  it  still  cumber  the  ground,  and  when 
at  the  same  time  the  foundations  are  laid  in  the  West  of 
a  gigantic  State  which  proceeds  to  cover  the  temperate 
area  of  North  America  between  the  two  oceans,  and,  in 
the  East,  of  the  dominion  of  a  European  nation  which 
has  absorbed  the  numerous  and  populous  principalities 
of  India.  Immediately  afterwards  the  doctrine  of  popu- 
lar self-government  and  the  doctrine  of  nationalities 
come  upon  the  scene,  threatening  a  disruption  of  some 
existing  political  aggregates.  In  point  of  fact,  how- 
ever, these  new  principles  have  done  as  much  to  unite 
as  to  sever,  for  though  five  States — Greece,  Rumania, 
Servia,  Montenegro  and  Bulgaria — have  been  cut  off 
from  an  effete  monarchy,  and  sixteen  republics  have 
been  carved  out  of  the  American  dominions  of  Spain 
and  Portugal,  the  doctrine  of  nationality  has  substi- 
tuted two  new  great  States,  more  important  than  all 
the  last-mentioned  twenty-one  put  together,  for  the 
multitude  of  kingdoms  and  principalities  which  so  late 
as  1859  filled  Italy  and  Germany. 

Thus  neither  Democracy  nor  the  principle  of  Nation- 
alities has,  on  the  balance  of  cases,  operated  to  check 
the  general  movement  towards  aggregation  which 
marks  the  last  six  centuries. 

It  may,  however,  be  said — and  this  question  should 
be  faced  before  we  proceed  to  inquire  whether  the  aggre- 


266          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

gative  movement  is  likely  to  continue — that  in  all  this 
inquiry  we  have  been  ignoring  two  potent  factors.  One 
is  Conquest — that  is  to  say,  military  power.  We  have 
been  examining  the  forces  of  Interest  and  Sympathy, 
which  cover  a  number  of  influences  social  or  economic, 
racial  or  sentimental.  But  after  all  it  is  Conquest,  i.e. 
the  might  of  the  strongest,  which  has  created  most 
States  as  we  find  them.  Is  Conquest  one  of  the  centripe- 
tal forces  ?  and  if  so,  is  it  not  the  greatest  of  them  ? 

The  other  factor  is  Family  Succession,  which  both 
during  the  Middle  Ages  and  since  has  done  a  great  deal 
to  consolidate  principalities  and  kingdoms.  The  United 
Kingdom  owes  much  to  this  agency,  Austria  and  France 
even  more. 

Conquest  and  Dynastic  Succession  are  hardly  fit  to 
be  classed  among  the  centripetal  forces,  because  they  are 
not  susceptible  of  scientific  treatment  like  the  other  in- 
fluences. The  disposition  of  the  stronger  to  subdue  and 
annex  the  weaker  neighbour  is  of  course  a  permanent 
fact  in  human  nature,  and  therefore  in  history.  But  in 
each  particular  instance  the  success  of  one  or  other  com- 
batant depends  on  what  may  be  called  historical  acci- 
dents— on  the  numbers  or  the  discipline  of  troops,  on  the 
possession  of  a  commander  of  military  genius,  on  alli- 
ances with  other  states,  on  the  internal  dissensions  of  one 
state  as  compared  with  the  unity  of  another.  Physical 
force  belongs  to  a  different  sphere  from  that  in  which  po- 
litical constitutions  work.  Constitutions  may  result  from 
a  conquest  or  may  be  maintained  for  a  time  by  arms  ;  but 
if  they  are  obliged  to  rely  on  and  have  constant  recourse 
to  physical  force  in  order  to  prevent  their  overthrow, 
they  are,  considered  as  Constitutions,  failures;  because 
the  very  nature  and  object  of  a  constitutional  Frame  of 
Government  is  so  to  express  and  so  to  adjust  to  existing 
conditions  the  wishes  and  aims  of  the  citizens  as  to  make 
the  majority,  and  if  possible  the  vast  majority,  of  the 
people  desire  to  support  it.  According  to  the  proverb, 
you  can  do  anything  with  bayonets  except  sit  down  on 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES          257 

them.  Physical  force  is  of  course  needed  to  punish  oc- 
casional infractions  of  the  Constitution  or  to  quell  re- 
volts against  it.  But  the  system  of  government  which 
ex  hypothesi  corresponds  to  the  permanently  strongest 
among  the  moral  forces,  else  it  has  no  right  to  prevail  in 
a  free  country,  ought  not  to  be  surrounded  by  cannon. 

Similarly,  the  devolution  of  princedoms  or  kingdoms 
by  marriage  and  inheritance,  much  as  it  has  done  to 
bring  States  originally  independent  under  one  govern- 
ment, lies  outside  political  science  in  the  proper  sense 
of  the  term.  Like  conquest,  it  brings  about  a  new  state 
of  things  by  an  event  with  which  the  ordinary  political 
and  constitutional  phenomena  of  national  life  have 
nothing  to  do,  coming  into  these  phenomena  as  an  in- 
commensurable and  (so  to  speak)  irrational  factor1. 

So  soon  as  either  conquest  or  a  union  due  to  here- 
ditary succession  has  taken  place,  the  normal  centri- 
petal and  centrifugal  tendencies  resume  their  action. 
Where  the  territory  of  one  people  has  been  forcibly 
acquired  by  another,  as  Lombardy  was  acquired  by 
Austria  in  1815,  or  has  been  occupied  in  virtue  of  a  title 
based  on  succession,  as  Portugal  was  claimed  by  Spain 
in  1580,  such  centripetal  forces  as  may  exist  have  the  ad- 
vantage of  physical  force  behind  them.  But  this  advan- 
tage may  be  unavailing  against  the  stronger  forces 
which  sentiment  sends  forth  to  dissever  the  connexion. 
Austria  lost  Lombardy  after  forty-four  years ;  Spain  lost 
Portugal  after  sixty.  In  both  cases  there  was  righting, 
but  it  was  not  so  much  the  balance  of  military  strength 
as  the  settled  hostility  of  the  subjected  people  which  in 
both  caused  the  severance.  So  the  acquisition  by  the 
English  kings  of  Aquitaine  and  the  subsequent  conquest 

1  The  fact  that  the  custom  of  a  country  permits  or  forbids  succession  through 
females  makes  a  great  difference  in  the  importance  of  succession.  The  union  of 
Castile  with  Aragon,  like  the  union  of  England  with  Scotland,  would  not  have  oc- 
curred under  a  different  rule  of  succession.  So  it  may  make  a  difference  whether 
the  throne  of  the  larger  country  passes  to  the  dynasty  of  the  smaller,  or  vice  versa. 
Had  a  king  of  England  inherited  the  throne  of  Scotland,  Scotland  might  have 
been  more  hostile  to  England.  Had  a  king  of  Portugal  inherited  the  throne  of 
Spain,  the  two  countries  might  have  remained  united. 
17 


258          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

of  large  part  of  France,  the  conquest  by  the  Turks  of 
Transylvania,  the  union  of  Holstein  with  Denmark,  the 
union  of  Belgium  with  Holland,  the  union  of  Alsace  with 
France,  all  effected  without  regard  to  the  will  of  the 
people,  were  all  in  time  brought  to  an  end.  The  last- 
mentioned  case  is  a  peculiar  one.  It  was  not  because 
the  Alsatians  wished  to  be  reunited  to  Germany,  but  be- 
cause the  Germans  wished  to  be  reunited  to  Alsace  that 
a  connexion  which  had  lasted  nearly  two  centuries  was 
dissolved  in  1871.  Military  motives,  decisive  as  regards 
the  annexed  part  of  Lorraine,  had  something  to  do  with 
the  taking  of  Alsace  also ;  but  if  Alsace  had  not  been 
German  in  language  and  habits,  though  not  in  sentiment, 
the  popular  voice  of  Germany  would  not  have  insisted  on 
recovering  it  against  the  will  of  its  inhabitants. 

Speaking  broadly,  one  may  say  that  Conquest  and 
Inheritance  give  an  opportunity,  better  in  the  latter  than 
in  the  former  case,  for  centripetal  forces  to  work.  If 
the  peoples  on  which  they  operate  are  backward,  with 
no  pronounced  national  feeling,  that  chance  may  be  a 
good  one,  and  the  influences  of  free  commerce,  joint 
government  (especially  if  it  is  good  government),  to- 
gether with  the  kind  of  pride  which  common  service  in 
war  often  produces,  may  operate  to  weld  two  peoples 
together  into  a  united  State.  Much  depends  on  lan- 
guage, much  on  geographical  position,  much  on  exter- 
nal pressure  from  powerful  neighbours.  But  if  one  of 
the  peoples  (or  both)  has  already  developed  a  strong 
sentiment  of  nationality,  the  prospect  of  fusion  is  but 
slender. 

The  Roman  Empire  is  the  capital  instance  of  a  vast 
dominion  established  by  conquest.  But  there  it  was  the 
weakness  of  the  centrifugal  forces  that  secured  the  co- 
hesion of  the  Empire.  The  conquered  countries  were 
either,  like  Gaul,  Spain  and  Britain,  occupied  by  tribes 
between  whom  there  existed  so  weak  a  bond  that  no 
general  national  feeling  or  combined  national  action  was 
possible,  or  had  been,  as  in  the  Eastern  Mediterranean 


CENTRIPETAL  AND  CENTRIFUGAL  FORCES         259 

World,  ruled  by  dynasties,  most  of  them  sprung  from 
military  adventurers  1J  so  that  the  sentiment  of  national 
life  had  not  centred  in  the  monarchy.  The  centrifugal 
forces  of  interest — the  desire  for  peace,  good  govern- 
ment, facilities  for  commerce,  and  so  forth — obtained 
free  play  under  the  imperial  administration,  and  to  these 
was  added  after  a  time  the  sense  of  pride  in  Roman  citi- 
zenship, and  in  the  greatness  of  a  State  which  included 
all  the  highest  civilization  of  the  world.  So  too  during 
the  Middle  Ages  not  a  few  conquests  ended  in  an  assimi- 
lation of  the  vanquished,  which  enlarged  without  weak- 
ening the  conquering  nation.  But  during  the  last  three 
centuries  the  experience  of  military  powers  has  been 
that  the  acquisition  of  masses  of  subjects  who,  being  al- 
ready civilized,  are  likely  to  resist  absorption  and  to  re- 
main disaffected,  is  a  doubtful  gain  and  may  become  a 
danger  to  the  conquering  State.  The  last  conspicuous 
instance  is  Poland,  partitioned  between  three  Powers, 
to  all  of  whom  her  provinces  have  brought  trouble. 
Conquests  continue  to  be  made,  but  they  are  now  mostly 
of  barbarous  or  semi-civilized  races,  so  inferior  to  the 
conquerors  in  force  and  in  national  spirit  that  the  centri- 
fugal forces  are,  or  at  least  seem  to  be,  practically 
negligible. 

Is  it  possible,  then,  to  arrive  at  any  conclusion  regard- 
ing the  respective  strength  which  these  two  sets  of 
forces  are  likely  to  display  in  the  coming  centuries? 
Will  the  tendency  to  aggregation  continue,  and  does  the 
future  belong  to  great  States  ?  Or  may  new  forces  ap- 
pear which  will  reverse  the  process,  as  it  was  reversed, 
though  through  causes  most  unlikely  to  reappear,  at  the 
fall  of  the  Roman  Empire  ? 

At  first  sight  the  probabilities  seem  to  point  to  fur- 
ther aggregation.  Although  none  of  the  five  great  na- 

1  There  were  of  course  also  a  certain  number  of  city  republics,  or  leagues  of  re- 
publics, but  these  were  too  small  to  have  developed  national  feeling  in  the  modern 
sense  ;  and  the  Roman  system  left  most  of  them  a  certain  measure  of  self-govern- 
ment which  modified  their  regret  for  an  independence  the  delight  in  which  had 
been  (in  many  cases)  reduced  by  domestic  disorders. 


260          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

tional  States — Russia,  Germany,  France,  Italy,  Britain 
— is  in  the  least  likely  to  be  absorbed  by  any  of  the 
others,  there  is  reason  to  think  that  within  the  next  cen- 
tury some  of  the  smaller  states  will  have  disappeared 
from  the  map  of  Europe.  In  one  or  two  other  parts  of 
the  world — as  for  instance  in  South  and  in  Central  Amer- 
ica— the  process  by  which  the  great  States  are  expand- 
ing is  not  yet  complete.  The  influences  of  swifter  and 
cheaper  communications  by  land  and  sea,  of  increasing 
commerce,  and  of  the  closer  intercourse  which  com- 
merce brings,  of  the  power  exerted  by  the  printing  press 
in  extinguishing  the  languages  which  prevail  over  a 
small  area  and  diffusing  those  spoken  by  vast  masses  of 
men — all  these  things  make  for  unity  within  each  of  the 
great  States  and  add  to  the  attractive  power  which  the 
greater  have  for  the  smaller.  These  influences,  more- 
over, all  promise  to  be  permanent. 

Against  them  we  must  set  the  fact  that  Conquest,  so 
far  as  civilized  peoples  are  concerned,  seems  likely  to 
play  a  smaller  role  in  the  future  than  in  the  past,  because 
it  begins  to  be  perceived  how  tenacious  is  the  sentiment 
of  nationality  in  a  vanquished  people,  and  how  much  the 
maintenance  of  that  sentiment  may  endanger  the  victor 
State.  As  was  observed  in  an  earlier  page,  the  progress 
of  a  community  in  civilization  often  tends  to  intensify 
both  its  capacity  for  political  discontent  and  its  peculiar 
national  sentiment,  thus  counterworking  the  influences 
of  trade  and  wealth.  A  people,  or  a  nationality  included 
in  a  large  State,  while  feeling  the  centripetal  forces  of 
material  interest,  may  nevertheless  feel  the  repellent 
instinct  of  an  unquenched  attachment  to  its  national  tra- 
ditions and  cling  to  the  hope  of  reviving  its  old  national 
life. 

The  problem  is,  however,  a  far  more  complex  one  than 
any  comparison  of  the  influences  of  material  interest  on 
the  one  side  and  national  sentiment  on  the  other  would 
suggest.  Many  phenomena  may  be  imagined  which 
would  affect  it  as  the  world  moves  on.  One  is  a  change 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         261 

in  the  conditions  under  which  war  is  waged.  Another 
is  a  removal  of  some  of  the  causes  which  induce  war,  or 
a  means,  better  than  now  exists,  of  averting  its  out- 
break. Another  is  the  growth  of  what  is  called  Collec- 
tivism and  a  disposition  to  apply  its  principles  in  small 
rather  than  in  large  areas,  seeing  that  there  are  obvi- 
ously some  things  which  can  be  better  managed  in  the 
former.  We  are  far  from  having  exhausted  the  possi- 
bilities of  the  influence  of  scientific  discovery  upon  eco- 
nomic life,  and  through  it  upon  social  and  political  life. 
Both  the  relations  of  Nations  and  States  to  one  another 
and  the  relations  of  the  groups  or  communities  within 
each  State  to  each  other  may  be  affected  in  ways  as  yet 
scarcely  dreamt  of.  Neither  can  we  foresee  the  modes 
in  which  the  scientific  way  of  looking  at  all  questions 
may  come  ultimately  to  tinge  and  modify  men's  habits  of 
thought  even  in  social  and  political  matters.  No  institu- 
tion was  at  one  time  more  generally  prevalent  over  the 
world,  or  seemed  more  deeply  rooted,  than  Slavery ;  and 
slavery,  which  has  now  vanished  from  civilized  com- 
munities, will  soon  have  vanished  from  all  countries. 
There  is  indeed  hardly  any  institution  for  which  perma- 
nance  can  be  predicted  except — and  some  will  not  admit 
even  this  exception — the  Family. 

Imagine  a  world  in  which  all  the  hitherto  unappropri- 
ated territories  had  been  allotted  to  one  or  other  of  the 
few  strongest  States.  Imagine  tariffs  abolished  and  the 
principle  of  equality  of  trade-facilities  among  States  es- 
tablished. Imagine  a  system  of  international  arbitra- 
tion created  under  which  the  risks  of  war  were  so  greatly 
reduced  that  the  prospects  of  war  did  not  occupy  men's 
minds  and  give  a  military  and  aggressive  tinge  to  their 
patriotism.  The  present  relations  of  centripetal  and 
centrifugal  forces  would  under  such  conditions  be 
greatly  altered,  as  respects  both  the  wide  theatre  of  the 
world  and  the  internal  conditions  of  each  particular 
State. 

Imagine  also  a  great  advance  in  the  desire  to  use  gov- 


262          CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

ernmental  agencies  for  the  benefit  of  the  citizens,  and  a 
general  conviction  that  such  agencies  could  best  be  used 
by  comparatively  small  communities  rather  than  by  the 
State  as  a  whole.  A  new  centrifugal  force,  centrifugal 
at  least  in  respect  of  each  State,  would  thereby  have  been 
called  into  action.  No  one  will  venture  to  foretell  any  of 
these  things.  But  none  of  them  is  impossible ;  and  it  is 
plain  that  they  might  produce  a  set  of  conditions,  and  a 
play  of  forces,  unlike  the  present,  and  unlike  any  period 
in  the  past.  We  must  not  therefore  assume  that  the 
large  States  and  the  present  structure  and  organization 
of  States  will  be  permanent. 

Of  the  more  remote  future,  History  can  venture  to  say 
little  more  than  this — that  it  will  never  bring  back  the 
past.  She  recognizes  that,  as  Heraclitus  says,  one  can- 
not step  twice  into  the  same  river.  Even  when  she  is 
able  to  declare  that  certain  forces  will  assuredly  be  pre- 
sent, she  cannot  forecast  their  relative  strength  at  any 
given  moment,  nor  say  what  hitherto  unobserved  forces 
they  may  not,  in  their  action  upon  one  another,  call  into 
activity.  All  she  can  do  for  the  lawyer,  the  statesman 
and  the  legislator,  when  they  have  to  study  and  use  the 
forces  operative  in  their  own  time,  is  to  indicate  to  them 
the  nature  and  the  character,  the  significant  elements  of 
strength  and  weakness,  that  belong  to  each  and  every 
force  that  has  been  heretofore  conspicuous,  so  as  to 
direct  and  guide  them  in  observing  and  reflecting  on  the 
present.  This  is  much  less  than  has  sometimes  been 
claimed  for  history.  Nevertheless  it  is  a  real  service, 
for  nothing  is  more  difficult  than  to  observe  exactly,  and 
the  ripest  fruit  of  historical  study  is  that  detachment  of 
mind,  created  by  the  habit  of  scientific  thinking,  which 
prevents  observation  from  being  coloured  by  prejudice 
or  passion. 


V 
PRIMITIVE    ICELAND 

ICELAND  is  known  to  most  men  as  a  land  of  volcanoes, 
geysers  and  glaciers.  But  it  ought  to  be  no  less  inter- 
esting to  the  student  of  history  as  the  birthplace  of  a 
brilliant  literature  in  poetry  and  prose,  and  as  the  home 
of  a  people  who  have  maintained  for  many  centuries  a 
high  level  of  intellectual  cultivation.  It  is  an  almost 
unique  instance  of  a  community  whose  culture  and  crea- 
tive power  flourished  independently  of  any  favouring 
material  conditions,  and  indeed  under  conditions  in  the 
highest  degree  unfavourable.  Nor  ought  it  to  be  less 
interesting  to  the  student  of  politics  and  laws  as  having 
produced  a  Constitution  unlike  any  other  whereof  re- 
cords remain,  and  a  body  of  law  so  elaborate  and  com- 
plex that  it  is  hard  to  believe  that  it  existed  among  men 
whose  chief  occupation  was  to  kill  one  another. 

With  the  exception  of  Madeira  and  the  Azores,  Ice- 
land is  the  only  part  of  what  we  call  the  Old  World  l 
which  was  never  occupied  by  a  prehistoric  race,  and  in 
which,  therefore,  the  racial  origin  of  the  population  is 
historically  known  to  us. 

None  of  those  rude  tribes  who  dwell  scattered  over 
the  north  of  Asia,  Europe  and  America — Lapps,  Samoy- 
edes  or  Esquimaux — ever  set  foot  in  it.  Adamnan, 
Abbot  of  lona  from  A.D.  679  to  704,  reports  in  his  famous 

1  Though  geographically  Iceland  belongs  rather  to  North  America  than  to 
Europe,  geologically  its  affinities  are  with  the  Cape  Verde  Islands,  the  Canaries, 
Madeira,  and  possibly  the  Azores  to  the  South,  with  Jan  Mayen  to  the  North,  as 
it  seems  to  owe  its  origin  to  a  line  of  volcanic  action  stretching  from  the  Cape 
Verde  Islands  to  far  beyond  the  Arctic  Circle. 


264  PRIMITIVE  ICELAND 

Life  of  St.  Columba1,  a  prophecy  of  the  saint  regarding 
a  holy  man  named  Kormak,  who,  in  Columba's  days 
(A.D.  521-597),  made  three  long  voyages  from  Ireland  in 
search  of  the  '  Desert  in  the  Ocean  '  (eremum  in  Oceano), 
a  term  so  happily  descriptive  of  Iceland  that  one  is 
tempted  to  believe  it  to  be  the  region  referred  to.  A 
little  later  the  Venerable  Bede  (A.D.  673-735)  speaks  of 
contemporaries  of  his  own  who,  coming  from  the  isle  of 
Thule,  declared  that  in  it  the  sun  could  be  seen  at  mid- 
night for  a  few  days  2.  Still  later  the  Irish  monk  Dicuil 
(writing  about  A.D.  825)  tells  3  of  an  isle  lying  far  to  the 
North-West  where  monks  known  to  him  had  spent  the 
summer  some  thirty  years  before.  And  our  earliest  Ice- 
landic authority,  the  famous  Landndmabok  (Book  of  the 
Land-takings),  mentions  that  when  the  first  Norwegian 
settlers  arrived  they  found  a  few  hermits  of  Irish  race  al- 
ready established  there,  who  soon  vanished  from  the 
presence  of  the  stronger  heathen,  leaving  behind  books, 
bells  and  staves  (probably  croziers).  The  Norse  settlers 
called  them  Papas  (i.e.  priests),  or  Westmen,  a  term  used 
to  describe  the  Scots  of  Ireland.  No  doubt,  then,  the 
earliest  discoverers  of  the  isle  were  these  Celtic  hermits, 
who  had  crossed  the  wide  and  stormy  sea  in  their  light 
coracles  of  wood  and  leather,  consecrating  themselves 
to  prayer  and  fasting  in  this  inclement  wilderness.  But 
they  contributed  no  element  to  the  population  of  the 
island,  and  can  hardly  be  said  to  have  a  place  in  its 
history,  which  begins  with  the  great  Norwegian 
immigration. 

The  first  Teuton  to  reach  Iceland  was  a  Norse  Viking 
named  Naddofi,  who  was  driven  to  the  isle  by  a  storm  in 

1  Vita  S.  Columbae,  cap.  vi. 

2  Comment,  on  2  Kings  xx.  9.    The  extreme  northernmost  point  of  Iceland  just 
touches  the  Arctic  Circle. 

3  In  his  book  De  Mensura  Orbis  Terrae,  cap.  7,  he  identifies  the  isle  with  Thule; 
and  the  reports  of  the  monks  point  rather  to  Iceland  than  to  the  Faeroe  Isles,  a 
group  which  Dicuil  mentions  elsewhere,  and  which  therefore  he  cannot  mean  by 
his  Thule.    The  name  Thule  has  of  course  been  applied  by  different  writers  to 
different  lands.    When  Tacitus  says  that  it  was  seen  in  the  distance  by  the  fleet  of 
Agricola,  he  probably  means  either  Shetland  or  the  Fair  Isle  between  the  Shet- 
lands  and  the  Orkneys. 


PRIMITIVE  ICELAND  265 

the  latter  half  of  the  ninth  century.  He  called  it  Snae- 
land,  or  Snowland.  A  second  visitor,  a  Swede  named 
Gardar,  sailed  round  it;  a  third  (Floki,  a  Norseman) 
landed,  and  gave  it  the  name  it  still  bears.  But  though 
the  news  of  the  discovery  soon  spread  far  and  wide 
through  the  whole  Northland,  the  isle  might  possibly 
have  lain  unoccupied  but  for  the  events  that  were  passing 
in  Xorway.  King  Harald  the  Fairhaired  was  then  in 
the  full  career  of  his  conquests.  The  great  battle  of 
Hafrsfjord  had  established  his  power  in  Central  and 
Southern  Norway,  and  he  was  traversing  the  fjords  with 
his  fleet,  compelling  the  petty  chieftains  who  stood  at 
the  head  of  the  numerous  small  independent  communi- 
ties that  filled  the  country  to  acknowledge  his  supremacy, 
and  imposing  a  tax  upon  the  land-holding  freemen. 

The  proud  spirit  of  the  warriors  who  for  more  than  a 
century  had  been  ravaging  the  coasts  of  all  Western 
Europe  could  not  brook  subjection,  and,  being  unable 
to  offer  a  united  opposition,  the  boldest  and  bravest 
among  them  resolved  to  find  freedom  in  exile.  Some 
sought  the  Orkneys,  Shetlands  and  Faeroe  isles,  already 
settled  by  Northmen.  Some  joined  the  Norwegian  set- 
tlers in  Ireland,  and  drove  the  Celtic  population  out  of 
some  districts  on  its  eastern  coast.  Others,  again,  fol- 
lowed Hrolf  Ganger  (Gongu  Hrolfr)  ('the  Walker'), 
or  Rollo  as  our  books  call  him,  a  Viking  who,  having  in- 
curred the  wrath  of  Harald,  sailed  forth  from  his  home 
on  the  fjords  near  Bergen  to  found  in  Northern  Gaul  a 
dynasty  of  Norsemen  whence  came  the  long  line  of  Nor- 
man dukes  and  English  kings,  Albaniquc  patrcs  atquc  altae 
mocnia  Romac.  And  yet  others,  hearing  the  praises  of  the 
lately-discovered  isle  far  off  in  the  ocean,  turned  their 
prows  to  the  west  and  landed  on  the  solitary  shores  of 
Iceland.  They  embarked  without  any  concert  or  com- 
mon plan ;  each  chieftain,  or  head  of  a  household,  taking 
his  own  family,  and  perhaps  a  group  of  friends  or  de- 
pendents ;  and  they  settled  in  the  new  land  where  they 
pleased,  sometimes  throwing  overboard  as  they  neared 


266  PRIMITIVE  ICELAND 

the  shore  the  wooden  columns,  adorned  with  figures  of 
Thor  and  O5in,  of  the  high-seat  in  their  old  Norwegian 
hall,  and  disembarking  at  the  point  to  which  these  were 
driven  by  the  winds  and  currents.  At  first  each  took  for 
himself  as  much  land  as  he  desired,  but  those  who  came 
later,  when  the  better  pastures  had  been  already  occu- 
pied, were  obliged  to  buy  land  or  to  fight  for  it ;  and  a 
curious  custom  grew  up  by  which  the  extent  of  territory 
to  which  a  settler  was  entitled  was  fixed.  A  man  could 
claim  no  more  than  what  he  could  carry  fire  round  in  a 
single  day;  a  woman,  than  that  round  which  she  could 
lead  a  two-year-old  heifer.  So  rapid  was  the  immigra- 
tion, many  colonists  from  Norwegian  Ireland  and  the 
Scottish  isles,  Orkneys,  Shetlands  and  Hebrides  (the 
two  former  groups  being  then  Scandinavian)  joining 
those  who  came  direct  from  Norway,  that  in  sixty  years 
the  population  had  risen  (so  far  as  our  data  enable  it  to 
be  estimated)  to  about  50,000,  a  number  which  seems 
not  to  have  been  exceeded  down  to  the  census  of  A.D. 
1823.  With  those  who  came  from  Ireland  and  the  Hebri- 
des there  came  some  small  infusion  of  Celtic  blood, 
which  we  note  in  such  names  as  Njal,  Kjartan,  and  Kor- 
mak,  given  to  men  descended  from  the  daughters  of 
Irish  chieftains. 

Planting  themselves  in  this  irregular  way,  and  in  a 
country  where  the  good  land  lay  in  scattered  patches, 
and  where  deserts,  glaciers  and  morasses,  as  well  as  tor- 
rents, passable  only  with  difficulty  or  even  danger,  cut 
off  one  settlement  from  another,  the  first  settlers  did  not 
create,  and  indeed  felt  little  need  of,  any  political  or  social 
organization.  But  after  a  time  a  sort  of  polity  began  to 
shape  itself,  and  the  process  of  its  growth  is  one  of  the 
most  interesting  phenomena  of  mediaeval  history.  The 
elements  out  of  which  it  sprang  were  of  course  those  two 
which  the  settlers  had  brought  with  them  from  Norway, 
and  both  of  which  were  part  of  the  common  heritage  of 
the  Teutonic  race — the  habit  of  joint  worship  at  a  temple, 
and  the  habit  of  holding  an  assembly  of  all  freemen  to 


PRIMITIVE  ICELAND  267 

discuss  and  dispatch  matters  of  common  interest,  and 
more  especially  lawsuits  1.  This  assembly  resembled  the 
Old  English  Folk  Mot,  and  was  called  the  Thing,  a  name 
which  survives  in  our  English  word  Hustings  (Rusting 
or  House  Thing),  the  platform  from  whence  candidates 
spoke  at  parliamentary  elections,  which  disappeared  in 
A.D.  1872  when  written  nominations  were  prescribed  by 
the  statute  which  introduced  vote  by  ballot.  The  ping  2 
was  held  at  the  temple,  usually  dedicated  to  Thor,  the 
favourite  deity  of  the  Norsemen  as  O6in  was  of  the 
Swedes;  since  the  place  of  worship  was  the  natural  centre 
of  the  neighbourhood,  and  the  ping  was  presided  over 
by  the  local  magnate  or  chief,  who  was  usually  also  the 
owner  or  guardian  of  the  local  temple,  there  being 
among  the  Scandinavian  peoples  no  special  sacerdotal 
caste. 

Now  when  a  Norse  chief  settled  himself  in  Iceland, 
one  of  his  first  acts  was  to  erect  a  temple,  often  with  the 
sacred  pillars  which  he  had  brought  from  the  ancestral 
temple  in  the  old  country.  The  temple  soon  became  a 
place  of  resort,  not  only  for  his  own  immediate  depen- 
dents, but  also  for  those  other  settlers  of  the  district  who 
might  not  be  rich  enough  to  build  and  maintain  a  shrine 
of  their  own.  Of  this  temple  the  chieftain  and  his  de- 
scendants were  the  priests ;  and  as  the  meetings  of  the 
local  ping  were  held  in  it,  he  was  the  natural  person  to 
preside  over  such  meetings,  both  because  he  was  usually 
(though  not  invariably)  eminent  by  his  wealth  and  power, 
and  also  because  he  offered  the  sacrifices  and  kept  the 
sacred  temple-ring  on  which  judicial  oaths  were  taken, 
as  at  Rome  men  swore  at  the  Ara  Maxima  of  Hercules. 
Thus  the  priest  acquired,  if  he  had  not  already  enjoyed  it, 
the  position  of  a  sort  of  local  chieftain  or  magnate,  not 
unlike  those  kings  of  heroic  Greece  whom  we  read  of  in 

1  Not  but  what  the  habit  of  holding  such  an  assembly  has  existed  among  peo- 
ples of  very  diverse  race  in  many  parts  of  the  world.   It  existed  among  the  Greeks. 
It  exists  among  the  Kafirs  of  South  Africa. 

2  I  use  the  Icelandic  and  Anglo-Saxon  letter  p  in  this  word  to  distinguish  it  from 
the  common  English  word. 


268  PRIMITIVE  ICELAND 

Homer,  or  those  German  tribe-princes  whom  Tacitus 
describes.  Although  his  title  was  that  of  GoSi 1  (origi- 
nally GuSi)  or  priest,  a  word  derived  from  the  name  of 
the  Deity,  he  lost  in  becoming  the  depositary  of  a  cer- 
tain measure  of  political  power  most  of  such  religious 
character  as  his  office  had  possessed.  Nor  did  any  sanc- 
tity attach  to  his  person.  In  that  age  at  least  religion 
had  come  to  sit  rather  lightly  upon  the  Norsemen. 
Either  from  inner  decay,  or  from  the  influence  of  the 
Christian  peoples  with  whom  they  came  in  contact  be- 
yond the  seas,  the  old  faith  was  beginning  to  disinte- 
grate. Worship  was  often  cold  or  careless,  and  we  read 
of  men  who  regarded  neither  por  nor  OSin,  but  trusted 
in  their  own  might  and  main. 

The  GoSi  was  therefore  much  more  of  a  secular  than 
of  an  ecclesiastical  person,  a  chieftain  rather  than  a  priest 
in  our  sense  of  the  word  2.  His  powers  as  a  chieftain 
were  very  indefinite,  as  indeed  had  been  those  of  the  local 
chieftains  of  Norway.  He  was  only  the  first  among  a 
number  of  free  and  warlike  land-owners,  some  of  them 
equal  or  superior  to  him  in  lineage,  with  an  official  dig- 
nity which  was  little  more  than  formal  in  the  hands  of  a 
weak  man,  but  might  be  turned  to  great  account  by  a 
person  of  vigour  and  ability.  As  he  presided  in  the 
ping,  so  he  was  the  appropriate  person  to  see  to  the  regu- 
larity of  its  judicial  proceedings,  to  preserve  order,  and 
to  provide  for  the  carrying  out  of  any  measures  of  com- 
mon concern  on  which  it  might  determine.  When  any 
unforeseen  danger  or  difficulty  arose,  he  was  looked  to  to 
advise  or  take  the  lead  in  action;  the  members  of  his 
ping  expected  aid  and  protection  from  him,  while  he, 
like  a  thegn  among  the  Teutons  of  contemporary  Eng- 
land, expected  support  and  deference  from  them.  But 
he  had  no  legal  powers  of  coercion.  Any  one  might  op- 

The  term  got5i  does  not  seem  to  have  been  used  in  Norway,  but  Ulfila,  in  his 
translation  of  the  Bible  into  Gothic  (in  the  fourth  century  A.  D.),  renders  tepeu's  by 
gudja.  The  8  is  pronounced  like  th  in  '  then.' 

8  It  is  true  that  as  the  Sagas  whence  we  draw  our  knowledge  of  the  Got5i  were 
all  written  down  at  a  time  when  heathenism  had  vanished,  it  is  possible  that  they 
may  not  fully  represent  the  original  character  of  the  office. 


PRIMITIVE  ICELAND  269 

pose  him  in  the  ping  or  out  of  it.  Any  ping-man  might 
withdraw  at  pleasure,  join  himself  to  some  other  GoSi, 
and  become  a  member  of  some  other  ping  1.  There  was, 
it  must  be  noted,  no  territorial  circumscription  corre- 
sponding to  the  ping.  Land  had  nothing  to  do  with  the 
position  held  by  the  GoSi  to  the  pingmen,  and  herein,  as 
well  as  in  the  absence  of  the  relation  of  commendation 
and  homage,  we  see  a  capital  difference  between  this  sys- 
tem and  feudality.  Nor  was  the  post  of  GoSi  a  place 
whence  much  emolument  could  be  drawn.  The  ping- 
men  were  indeed  required  to  pay  'a  sort  of  tax  called  the 
temple  toll  (hoftollr),  but  this  did  no  more  than  meet  the 
expenses  to  which  the  GoSi  was  put  in  keeping  up  the 
temple,  and  feasting  those  who  came  to  the  sacrifices ; 
it  gave  him  no  revenue  which  he  could  use  to  extend  his 
authority.  Accordingly,  the  GoSorS  was  regarded  as 
implying  power  rather  than  property,  and  was  not  (after 
the  introduction  of  Christianity)  liable  to  the  payment  of 
tithe.  A  curious  feature  of  the  office  was  its  alienability. 
Probably  because  it  had  arisen  out  of  the  ownership  of 
the  temple,  it  was  regarded  as  a  piece  of  private  pro- 
perty which  could  be  transferred  by  way  of  sale  or  gift, 
and  could  be  vested  in  several  persons  jointly.  And 
similarly  a  number  of  GoSorSs  might  by  inheritance  or 
purchase  become  vested  in  the  same  person. 

Thus  in  the  years  immediately  following  the  immigra- 
tion there  sprang  up  round  the  coasts  of  Iceland  a  great 
number  of  petty,  unconnected  and  loosely  aggregated 
groups  of  settlers.  We  must  not  venture  to  call  them 
states,  scarcely  even  communities,  not  principalities, 

1  The  illustrious  Konrad  Maurer,  to  whose  learned  researches  and  sound  judge- 
ment every  one  who  writes  about  the  constitutional  antiquities  of  Iceland  must 
feel  infinitely  indebted,  thinks  that  the  name  of  GoSi  was  used  in  Norway  before 
the  emigration  to  Iceland,  though  probably  the  priest  was  there  a  less  important 
person  than  he  became  in  Iceland,  where  his  custody  of  the  temple  put  him  to 
some  extent  in  the  position  held  in  the  Norwegian  motherland  by  the  hereditary 
chieftain,  who  was  in  Norway  the  natural  president  of  the  local  Thing. 

Those  who  desire  to  study  the  early  history  of  Iceland  may  be  referred  to  the 
writings  of  Dr.  Maurer,  and  especially  to  his  Island  bis  zum  Untergange  des  Frei- 
staats  (Munich,  1874),  and  his  Beitrdge  zur  Rechtsgesckichte  des  Gcrntanischen 
Nordens  (Munich,  1852). 


270  PRIMITIVE  ICELAND 

such  as  those  which  were  beginning  to  spring  up  in 
Western  Europe,  not  in  a  strict  sense  republics,  yet 
nearer  to  republics  than  to  principalities,  organized,  so 
far  as  they  were  organized  at  all,  chiefly  for  the  purposes 
of  justice,  and  particularly  for  the  exaction  of  fines  for 
homicide,  but  with  no  settled  plan  of  government,  no 
written  laws — if  indeed  writing  was  yet  in  use  at  all — 
no  defined  territory,  and  a  comparatively  weak  cohesion 
among  their  own  members,  the  Thingmen.  The  really 
effective  tie  was,  in  those  ages,  the  tie  of  kindred;  and 
the  pingmen  of  the  same  GoSi  were  not  kinsfolk,  were 
not  a  clan  or  sept, like  the  Celtic  communities  of  Scotland 
and  Ireland.  That  tie  was  strong  enough  to  involve  a 
whole  district  in  the  blood-feud  of  a  single  man.  For 
when  any  member  of  a  family  was  killed,  it  was  the  duty 
of  his  nearest  relatives  to  avenge  his  death,  either  by 
obtaining  a  full  compensation  in  money,  for  which,  if  the 
offender  refused  to  pay  it,  a  lawsuit  was  brought  in  the 
ping,  or  else  by  slaying  the  murderer  or  some  member 
of  his  family.  Thus  a  feud,  like  a  Vendetta  in  Corsica  or 
in  Eastern  Kentucky,  might  go  on  from  generation  to 
generation,  each  act  of  revenge  drawing  others  in  its 
train,  and  tending  to  draw  more  and  more  families  into 
the  feud,  because  when  fights  took  place,  the  friends  of 
each  party  often  joined,  and  if  some  were  killed,  their 
relatives  had  a  new  blood-claim  to  prosecute. 

Between  the  different  communities  that  had  thus 
sprung  up  there  was  no  political  tie  whatever.  There 
did  not  as  yet  exist  any  Icelandic  nation,  much  less  any 
common  Icelandic  State  of  which  all  the  communities 
felt  themselves  members.  Each  was  an  independent 
body;  and  if  a  dispute  arose  between  the  members  of 
two  different  pings,  there  was  no  means  of  adjusting 
it  except  by  voluntary  submission  to  the  award  of  some 
other  ping  or  else  by  open  war.  Seeing  that  slayings  and 
plunderings  and  burnings  were  everyday  occurrences  in 
this  fierce  race,  where  Vikingry  (i.e.  piracy)  was  the  most 
honoured  pursuit,  such  cases  were  very  frequent,  espe- 


PRIMITIVE  ICELAND  271 

cially  as  to  take  revenge  for  a  kinsman's  death  was 
deemed  a  sacred  duty. 

Even  when  the  offender  belonged  to  the  same  ping 
as  the  injured,  it  often  happened  that  the  influence  of 
his  kindred,  or  the  favour  of  the  GoSi  of  the  place,  or 
some  technical  error  in  bringing  the  suit  for  compensa- 
tion, prevented  justice  from  being  done.  Accordingly 
the  need  for  some  remedy,  for  some  further  political,  or 
rather  judicial,  organization  of  the  island  began  to  be 
generally  felt,  for  however  fond  men  may  be  of  killing 
one  another,  the  Norsemen  were  always  also  fond  of 
money,  and  would  often  prefer  a  blood-fine  to  the  satis- 
faction of  killing  their  enemy,  could  the  blood-fine  be 
secured.  Thus  it  came  to  pass  that,  about  fifty  years 
after  the  first  colonization,  a  chief  named  tJlfljot,  venera- 
ble from  his  age  and  abilities,  came  forward  to  propose 
a  scheme.  He  urged  the  creation  of  one  general  ping 
for  the  whole  country,  where  all  matters  of  common  in- 
terest might  be  discussed,  and  all  suits  which  could  not 
be  dispatched,  or  had  not  been  fairly  dealt  with  in  the 
local  pings,  might  be  decided.  Travelling  round  the 
island,  he  brought  over  to  his  views  the  most  influential 
GoSis  and  other  leading  men;  and  at  their  request,  sailed 
to  Norway  to  inquire  into  the  laws  prevailing  there,  and 
to  draw  up  regulations  for  this  new  general  ping;  some- 
what as  envoys  were,  according  to  the  Roman  story, 
sent  from  Rome  to  the  Greek  cities  to  bring  back  ma- 
terials and  suggestions  for  the  legislation  of  the  Decem- 
virs. At  the  same  time  tjlfljot's  foster-brother,  Grim 
Geitskor  ('  Goat's  Shoe  '),  the  fleetest  man  and  nimblest 
rock-climber  in  Iceland,  was  commissioned  to  traverse 
the  island  in  search  of  a  place  suitable  for  the  meeting  of 
the  proposed  assembly.  After  long  wanderings,  Goat's 
Shoe  hit  upon  a  spot  to  which  the  name  of  ping  Vellir  1t 
'  the  plains  of  the  ping,'  has  ever  since  belonged,  in 

1  Thing  Vellir  is  the  nominative  plural,  Thing  Valla — the  form  in  which  the 
word  has  become  more  familiar  to  Englishmen,  and  which  remains  in  Thingwall 
(near  Liverpool),  Tynwald  (in  the  Isle  of  Man),  and  Dingwall  (in  Rosshire)— is  the 
genitive  plural. 


272  PRIMITIVE  ICELAND 

the  south-west  of  the  island,  about  eight  hours'  riding 
from  where  Reykjavik  the  present  capital  now  stands, 
and  within  the  district  of  the  first  temple  that  had  been 
founded  by  Ingolf,  the  earliest  Norwegian  settler.  This 
circumstance  gave  the  place  a  sort  of  sacredness.  There 
was  plenty  of  water  and  pasture,  and  the  lake  which 
washed  the  plain  of  meeting  abounded  (as  it  does  to  this 
day)  with  trout  and  wild  fowl.  (It  abounds  also  with 
most  pernicious  small  black  flies,  whereon  the  trout 
grow  fat,  but  which  make  fishing  not  always  a  pleasure.) 
Here,  accordingly,  Ulfljot  having  in  the  meantime  re- 
turned from  Norway  with  his  materials  for  legislation, 
the  first  Aljnng,  or  General  Assembly  of  all  Iceland,  met 
in  A.D.  930,  and  here  it  continued  to  meet,  year  after  year, 
for  a  fortnight  in  the  latter  half  of  June,  till  the  year 
1800 1,  one  of  the  oldest  national  assemblies  in  the  civi- 
lized world,  and  one  of  the  very  few  which  did  not,  like 
the  English  Parliament  and  the  Diet  of  the  Romano- 
Germanic  Empire,  grow  up  imperceptibly  and,  so  to 
speak,  naturally,  from  small  beginnings,  but  was  formally 
and  of  set  purpose  established,  by  what  would  have  been 
called,  had  paper  existed,  a  paper  constitution,  that  is  to 
say  by  the  deliberate  agreement  of  independent  groups 
of  men,  seeking  to  attain  the  common  ends  of  order  and 
justice. 

There  was  thus  created,  before  the  middle  of  the  tenth 
century,  when  Athelstan  the  Victorious  2  was  reigning 
in  England  and  defeating  Scots  and  Northumbrians  at 
Brunanburh  by  the  help  of  the  Icelandic  warriors  Thorolf 
and  Egil,  sons  of  Skallagrim 3,  when  the  Saxon  king 
Henry  the  Fowler  was  repelling  the  Magyar  hosts  and 
laying  the  foundations  of  the  German  Kingdom,  and 

1  Since  this  lecture  was  delivered  the  Aiding  which  since  1843  had  led  a  feeble 
life  at  Reykjavik  as  a  sort  of  advisory  council,  has  been  re-established  as  a  repre- 
sentative governing  assembly  under  a  new  constitution  granted  to  Iceland  in  1874. 
It  now  meets  every  second  year  at  Reykjavik. 

a  The  Saga  of  Egil  calls  him  A'Salsteinn  hinn  Sigrsseli  (lit.  '  blessed  with  vic- 
tory ')•  It  is  curious  that  this  title  should  have  been  preserved  in  Iceland  and  ap- 
parently have  been  forgotten  in  England. 

3  See  Egils  Saga  Skallagrimssonar,  chap.  54. 


PRIMITIVE  ICELAND  273 

when  the  power  of  the  last  Carolingians  was  beginning 
to  pale  in  Gaul  before  the  rising  star  of  the  Capetian  line, 
a  sort  of  republic  embracing  the  whole  isle  of  Iceland,  a 
republic  remarkable  not  only  from  its  peculiar  political 
structure,  but  also,  as  will  presently  appear,  from  the 
extremely  limited  range  of  its  governmental  activity. 
About  thirty  years  later  its  constitution  was  amended  in 
some  important  points,  and  forty  years  after  that  time, 
about  the  year  1004,  further  alterations  were  made,  the 
details  of  which  are  too  much  disputed  as  well  as  too 
intricate  to  be  explained  here.  Its  general  outline,  in  its 
completed  shape,  was  the  following.  The  total  number 
of  regular  pings,  and  priest-chieftaincies  or  GoSorSs, 
was  fixed  at  thirty-nine,  nine  for  each  of  the  four  Quar- 
ters into  which  the  island  was  divided,  except  the  North 
Quarter,  which,  in  order  to  allay  certain  local  suscepti- 
bilities, was  allowed  twelve.  Each  of  these  thirty-nine 
local  pings  was  presided  over  by  its  GoSi.  Then,  for 
certain  purposes,  three  of  these  pings  were  united  to 
form  a  larger  ping-district  (pingsokn),  of  which  there 
were  therefore  thirteen  in  all,  viz.  four  for  the  North 
Quarter,  and  three  for  each  of  the  other  Quarters. 
There  was  also  one  still  larger  ping  for  each  Quarter, 
called  the  FjortSungsfing.  It  seems  to  have  grown  up 
before  the  institution  of  the  Aiding,  and  to  have  repre- 
sented the  first  stage  in  the  organization  of  a  larger  com- 
munity out  of  the  small  local  pings.  But  it  tended  in 
course  of  time  to  lose  its  importance. 

Ordinary  lawsuits  and  questions  of  local  interest  were 
determined  in  these  minor  pings,  while  graver  suits,  or 
those  in  which  the  parties  belonged  to  different  pings, 
or  where  it  was  sought  to  reverse  the  decision  of  a  local 
ping,  as  well  as  all  proposals  for  alterations  of  the 
general  law,  were  brought  before  the  Alfing,  at  its  an- 
nual meeting  in  June.  It  seems  to  have  been  therefore 
partly  a  court  of  first  instance  and  partly  a  court  of  ap- 
peal. Now  the  Alping  was  open,  like  other  primary 
Teutonic  and  Hellenic  assemblies,  to  all  freemen  who 
18- 


274  PRIMITIVE  ICELAND 

chose  to  attend ;  but  its  powers  were  practically  exercised 
by  a  limited  number  of  persons,  viz.  the  GoSis  and  cer- 
tain members  nominated  by  them. 

For  judicial  purposes,  the  Aljnng  acted  through  four 
Courts,  one  for  each  Quarter.  Each  Quarter  Court 
(fjorSungsdomr)  consisted,  according  to  one  view,  of 
thirty-six  members,  viz.  the  GoSis  of  the  Quarter  with 
twenty-four  nominees,  and,  according  to  another  view, 
of  nine  persons  nominated  by  the  Goftis  of  the  Quarter. 
There  was  also  a  fifth  Court  (called  the  fimtardomr),  in- 
stituted later  than  the  others  (A.D.  1004),  on  the  sugges- 
tion of  the  famous  jurist  Njal,  son  of  Thorgeir.  This 
Court,  which  exercised  jurisdiction  in  cases  where  one 
of  the  other  Courts  had  failed,  was  composed  in  a  some- 
what different  way,  acted  under  a  more  stringent  oath, 
and  gave  its  'decisions  by  a  majority,  whereas  in  other 
Courts  unanimity  was  required.  It  seems  to  have  been 
intended  not  only  to  avert  armed  strife  by  providing  a 
better  method  for  settling  disputes,  but  also  to  organize 
the  country  as  a  whole  and  give  it  something  approach- 
ing to  a  central  authority.  This  result,  however,  was 
not  attained,  the  social  and  physical  obstacles  proving 
insuperable. 

In  these  judicial  committees  of  the  Alping  lawsuits 
were  brought  and  argued  with  an  elaborate  formality 
and  a  minute  adherence  to  technical  rules  far  more  strict 
than  is  now  practised  anywhere  in  Europe,  a  fact  which 
will  appear  the  more  extraordinary  when  we  remember 
that  in  those  days  both  the  law  and  all  the  appropriate 
forms  of  words  which  the  parties  were  obliged  to  employ 
were  not  written,  but  preserved  solely  by  the  memory  of 
individual  men. 

For  legislative  purposes  the  Aiding  acted  through  an- 
other committee  of  144  persons,  only  one-third  (forty- 
eight)  of  whom,  being  the  thirty-nine  GoSis  and  nine  no- 
minees, had  the  right  of  voting.  The  nine  nominees 
were  persons  chosen  by  the  Goftis  of  the  East,  South,  and 
West  Quarters,  three  by  each  Quarter,  in  order  to  give 


PRIMITIVE   ICELAND  275 

each  of  these  Quarters  the  same  strength  in  the  Com- 
mittee as  the  North  Quarter  had  with  its  twelve  Gobis. 
Each  of  the  forty-eight  appointed  two  assessors  who  ad- 
vised him,  sitting  one  behind  him  and  the  other  in  front  of 
him,  so  that  he  could  readily  seek  their  counsel,  and  thus 
the  144  were  made  up,  the  forty-eight  being  described  as 
the  Middle  Bench.  This  Committee  was  called  the  Lo- 
gretta (lit. '  Law  Amending  '),  and  by  it  all  changes  in  the 
law  were  made,  and  all  matters  of  common  interest  dis- 
cussed. It  was  essentially  an  aristocratic  body,  as  indeed 
the  whole  Constitution  bore  an  aristocratic  colour, 
though  there  was  no  such  thing  as  a  formal  distinction 
of  rank  l,  much  less  any  titled  nobility.  After  the  intro- 
duction of  Christianity  in  A.D.  1000,  the  two  bishops  were 
added  to  the  Logretta,  while  at  the  head  of  all,  making 
up  the  number  of  members  to  147,  stood  an  elected  offi- 
cer, called  the  Speaker  of  the  Law. 

This  last-named  personage,  the  solitary  official  of  the 
republic,  is  one  of  the  most  curious  parts  of  the  system. 
He  was  called  the  LogsogumaSr,  literally  '  Law-say- 
man/  or,  as  we  may  render  it,  Speaker,  or  Declarer,  of 
the  Law,  and  was  the  depositary  and  organ  of  the  un- 
written common  law  of  the  country.  It  was  his  duty  to 
recite  aloud,  in  the  hearing  of  the  greater  number  of 
those  present  at  the  ping,  the  whole  law  of  Iceland, 
going  through  it  in  the  three  years  during  which  he  held 
office ;  and  to  recite  once  in  every  year  the  formulas  of 
actions,  this  being  the  part  of  the  law  which  was  of  most 
practical  importance.  Besides  this,  he  presided  in  the 
Logretta,  giving  a  casting  vote  where  the  votes  were 
equal ;  and  he  was  bound  to  answer  every  one  who  asked 
him  what  the  provisions  of  the  law  actually  were,  al- 
though not  required  to  advise  applicants  as  to  the  course 
they  ought  to  follow  in  a  given  case.  When  in  any  suit 
a  question  of  what  was  the  legal  rule  arose,  reference 
was  made  to  him,  and  his  decision  was  accepted  as  final. 

1  Although  the  penalty  for  killing  a  man  of  high  lineage  was  heavier  than  that 
for  an  ordinary  freeman  :  and  one  perceives  from  the  Sagas  how  carefully  genea- 
logies were  preserved  and  what  great  respect  was  paid  to  long  descent. 


276  PRIMITIVE  ICELAND 

For  these  labours  he  received  a  yearly  salary  of  two  hun- 
dred ells  of  VaSmal  (the  blue  woolen  cloth  which  then 
served  as  currency,  and  which  continued  to  do  so,  for 
some  purposes,  down  to  our  own  time),  besides  one-half 
of  the  fines  imposed  at  the  Aljnng.  He  was  of  course 
selected  from  the  most  accomplished  lawyers  of  the  time. 
His  declarations  of  the  law  were  conclusive,  at  least  dur- 
ing his  three  years'  term  of  office,  in  all  causes  and  over 
all  persons.  Thus  he  exercised  a  kind  of  quasi-judicial 
or  quasi-legislative  power,  and  has  been  fancifully  com- 
pared to  the  Roman  Praetor,  also  an  officer  elected  for  a 
term,  also  by  his  edicts  the  declarer  of  the  law  he  had 
to  administer1.  But  the  Law-Speaker  was  in  reality 
neither  judge  nor  magistrate,  nor,  indeed,  a  legislator, 
except  in  so  far  as  the  right  to  enounce  and  interpret 
borders  on  legislation.  He  delivered  no  judgements,  he 
had  no  power  of  enforcing  a  decision  or  of  punishing  an 
offender.  He  did  not  even  open  the  Aiding  and  take  the 
responsibility  for  keeping  order  at  it,  for  these  functions 
belonged  to  the  GoSi  of  the  district,  called,  because  the 
Aljnng  met  within  his  jurisdiction,  the  AllsherjargoSi 
(priest  of  the  whole  host).  The  LogsogumaSr  was  in 
fact  nothing  but  the  living  voice  of  the  law,  enunciating 
those  customary  rules  which  had  come  down  from  the 
foretime,  rules  which  all  accepted,  though  they  were  not 
preserved  in  any  written  form,  and  though  they  must 
have  been  practically  unknown  to  the  great  majority  of 
the  citizens. 

The  office,  although  more  important  in  Iceland  from 
the  absence  of  a  king  or  local  prince,  was  one  of  which 
we  find  traces  among  other  Scandinavian  peoples,  or  at 
least  among  the  Norsemen.  It  appears  in  Norway,  in 
the  Orkneys,  and  in  the  Hebrides  (though  there  the 
name  is  Logman,  which  in  Iceland  means  merely  one 
learned  in  the  law). 

Thingvellir,  where  the  Aiding  met  from  the  year  930 

1  Viva  vox  iuris  civilis  was  the  description  which  the  Romans  used  to  give  of 
their  Praetor,  as  to  whom  see  Essay  XIV,  p..  691. 


PRIMITIVE  ICELAND  277 

down  to  a  time  within  the  memory  of  living  men,  is  a 
spot  not  less  remarkable  physically  than  memorable  for 
the  stirring  events  of  which  it  was  the  witness.  It  is  a 
slightly  undulating  plain,  some  five  miles  long  by  three 
wide,  washed  on  the  south  by  a  broad  island-studded 
lake,  and  girdled  in  at  its  northern  end  by  lofty  moun- 
tains, their  black  volcanic  rocks  streaked  here  and  there 
with  snow-beds.  The  surface  is  all  of  lava,  sometimes 
bare  and  rugged,  sometimes  covered  with  thin  brush- 
wood, dwarf  birches  and  willows,  sometimes  smoothing 
itself  out  into  sweeps  of  emerald  pasture,  but  everywhere 
intersected  by  profound  chasms,  formed  when  the  whole 
was  a  molten  mass.  East  and  west  it  is  hemmed  in  by 
two  lines  of  precipices,  whose  rugged  sides  seem  to  show 
that  the  plain  between  them  has,  at  some  remote  period, 
perhaps  when  the  lava-flood  was  cooling,  sunk  suddenly 
down,  leaving  these  walls  to  be  the  edges  of  the  plateau 
which  stretches  away  backwards  to  the  east  and  west. 
Under  the  western  of  these  two  walls,  on  the  margin  of 
the  lake,  just  where  it  receives  the  stream  which  has  flung 
itself  in  a  sparkling  cascade  over  the  precipice,  the  place 
of  meeting  was  fixed.  The  chieftains,  who  came  from 
every  corner  of  the  island  with  a  following  of  armed  com- 
panions and  dependents,  because  broils  were  frequent, 
and  armed  strife  might  interrupt  the  progress  of  a  law- 
suit, built  their  booths — erections  of  stone  and  turf  roofed 
for  the  time  with  cloth  or  canvas — along  the  banks  of  the 
Oxara  river,  and  turned  out  their  horses  to  pasture  by 
the  lake.  Places  were  appointed  for  the  holding  of  the 
several  courts,  while  the  Logretta  or  legislative  commit- 
tee sat  on  a  spot  which  nature  seemed  to  have  herself 
designed  for  the  purpose.  Two  of  the  extraordinary 
chasms  by  which  the  plain  is  seamed,  each  some  eighty 
feet  deep,  and  filled  for  the  lower  fifty  feet  by  bright 
green  water,  enclose  a  narrow  strip  of  lava  some  two 
hundred  yards  long,  cutting  it  off,  except  at  one  point 
where  there  is  a  narrow  entrance  which  three  men  might 
hold,  from  the  surrounding  land.  The  surface  is  nearly 


278  PRIMITIVE  ICELAND 

level,  covered  by  short  grass  now  browsed  by  a  few 
sheep ;  and  there  is  nothing  to  tell  that  in  this  space,  in 
the  full  sight  of  the  assembled  multitude,  the  heroes  of 
ancient  Iceland  spoke  and  voted  their  laws,  and  gave 
their  verdicts;  while  from  an  eminence  in  the  midst  of 
the  enclosure,  still  called  the  Logberg,  or  Hill  of  Laws, 
the  Law-Speaker  recited  the  law  of  the  nation  in  the  sight 
and  hearing  of  the  multitude  that  stood  on  the  further 
side  of  the  chasms1.  Not  only  so:  there  is  all  round 
nothing  whatever  to  show  that  the  place  has  ever  been 
different  from  what  it  is  now.  Between  the  Logberg  and 
the  lake  stand  the  little  wooden  church  and  its  humble 
parsonage.  No  other  house  is  near,  nor  any  sign  of 
human  life.  Only  the  islet  is  still  pointed  out  in  the  river 
where  the  solemn  duels  which  the  laws  of  Iceland  recog- 
nized were  fought,  and  the  deep  green  swirling  pool  into 
which  women  condemned  for  witchcraft  were  hurled 
from  the  brink  of  the  precipice.  In  most  of  the  spots  to 
which  the  traveller  is  drawn,  by  memories  of  constitu- 
tional freedom  or  of  political  struggles,  his  imagination 
is  aided  by  the  remains  of  the  buildings  where  assemblies 
met  or  monarchs  sat  enthroned.  Here  man  has  left 
nothing  to  speak  of  his  presence,  and  it  is  hard  to  realize, 
when  one  looks  on  this  silent  and  desolate  scene,  that  it 
was  once  filled  by  so  much  strenuous  life,  and  so  often 
resounded  to  the  clash  of  arms. 

For  the  Aljdng  was  not  merely  an  assembly  for  the 
dispatch  of  business:  it  was  the  great  annual  gathering 
of  the  whole  nation,  a  gathering  all  the  more  needed  in 
a  land  where  there  are  no  towns,  and  most  men  live  miles 
away  from  their  nearest  neighbours.  To  it  chieftains 
rode  with  their  wives  and  daughters  and  a  band  of  armed 
retainers  from  the  furthest  corners  of  the  country,  tak- 
ing, perhaps, as  those  must  have  done  who  came  from  the 

1  Since  this  was  written,  some  eminent  antiquaries,  including  my  lamented 
friend  Dr.  GuS brand  Vigfiisson,  have  argued  that  the  true  Logberg  is  to  be 
sought  not  in  this  spot  which  tradition  indicates,  but  on  the  edge  of  the  great  lava 
rift  called  the  Almannagjd  to  the  west  of  the  river.  See  The  Saga  Steads  of  Ice- 
land^ by  W.  G.  Collingwood  and  Jon  Stefansson,  1899,  pp.  14-17. 


/'/,'/]/ 777  I  /:    ICELAND  279 

East  fjords  along  the  northern  edge  of  the  great  central 
desert,  a  fortnight  or  more  on  the  way.  Shipmasters 
from  Norway  or  Ireland  brought  their  wares  for  sale. 
Artisans  plied  their  trades.  We  are  told  that  even  jug- 
glers' sheds  and  drinking-booths  were  set  up,  and  games 
of  all  kinds  carried  on.  It  was  a  great  opportunity  not 
only  for  the  renewing  of  friendships  between  those  who 
lived  in  distant  parts  of  the  country,  but  for  the  arranging 
of  adoptions  and  marriages ;  and  the  Sagas  mention  nu- 
merous instances  in  which  proposals  were  made  or  be- 
trothals entered  into  at  a  meeting  of  the  Alj'ing,  in  most 
of  which  instances  the  will  of  the  maiden  seems  to  have 
prevailed  over  that  of  her  parents.  It  was  midsummer, 
when  there  is  in  those  latitudes  no  night,  but  the  glare  of 
day  subsides  for  a  few  hours  into  an  exquisitely  rich  and 
tender  twilight,  clothing  the  sky  with  colours  never  seen 
in  our  duller  air.  And  we  can  fancy  how  those  who  fol- 
lowed their  fathers  to  the  Al|>ing  found  compensation 
for  all  the  loneliness  and  gloom  of  the  long  winter  in  this 
one  fortnight  of  vivid  mirth  and  excitement. 

The  meeting  of  the  Aljnng  was  not  only  the  centre  of 
the  political  life  of  the  Republic.  It  was,  so  to  speak, 
the  Republic  itself,  for  it  was  only  then  that  the  Republic 
became  visible  before  men's  eyes  or  acted  as  a  collective 
whole.  During  the  rest  of  the  year  lawsuits  and  every- 
thing else  of  public  concern  were  left  to  the  Quarter 
pings  and  local  pings,  and  to  the  local  GoSis.  The  few 
laws  or  resolutions  of  general  concern  which  the  Aljnng 
passed — they  were  few,  because  its  legislative  activity 
was  chiefly  occupied  in  regulating  its  own  judicial  pro- 
ceedings— were  probably  meant  to  be  accepted  and  ob- 
served over  the  whole  island,  but  the  Aiding  did  not  at- 
tempt to  enforce  them,  and  indeed  had  no  machinery  by 
which  it  could  do  so.  Each  Got5i  was,  in  a  loose  way,  a 
sort  of  executive  magistrate  over  his  own  pingmen;  but 
he  did  not  derive  his  authority  from  the  Central  or  Fede- 
ral Aiding,  and  he  was  not  responsible  to  the  Aljnng  for 
its  exercise.  The  Republic,  if  we  may  so  call  it,  had  no 


280  PRIMITIVE  ICELAND 

Executive  whatever.  Its  sole  official  was  the  Law- 
Speaker  (of  whom  more  anon),  but  his  function  was  only 
to  declare  the  law^  and  was  exercised  only  while  the 
Aljnng  was  sitting.  At  other  times  the  constituent  pings 
and  GotSis  were  virtually  quite  independent,  and  might 
and  often  did  carry  on  war  with  one  another,  subject  to 
no  penalty  or  liability  for  so  doing,  save  in  so  far  as  an 
action  for  compensation  might  be  brought  against  any 
one  who  had  killed  another.  There  was  no  police,  no 
militia,  no  fleet,  no  army,  nor  any  means,  like  those  pro- 
vided in  the  feudal  kingdoms  of  contemporary  Europe, 
of  raising  an  army.  The  isle  lay  so  far  away  from  all 
other  countries  except  Greenland,  on  which  an  Icelandic 
colony  had  been  planted,  that  it  happily  did  not  need  to 
have  a  foreign  policy.  There  was  neither  public  revenue 
nor  public  expenditure,  neither  exchequer  nor  budget. 
No  taxes  were  levied  by  the  Republic,  as  indeed  no  ex- 
penses were  incurred  on  its  behalf. 

The  Icelandic  Republic  was  in  fact  a  government  de- 
veloped only  upon  its  judicial  and  (to  a  much  smaller  ex- 
tent) upon  its  legislative  side,  omitting  altogether  the 
executive  and  international  sides,  which  were  in  the 
Greek  and  Roman  world,  and  have  again  in  the  modern 
world,  become  so  important.  For  a  community  to  exist 
with  such  an  absence  of  administrative  organization  was 
obviously  possible  only  in  a  region  like  Iceland,  severed 
by  a  wide  and  stormy  sea  from  the  rest  of  the  world,  and 
with  a  very  thin  and  scattered  population;  possible  too 
only  in  a  simple  state  of  society  where  man's  needs  are 
few  and  every  one  fends  for  himself. 

The  system  whose  outlines  I  have  sought  to  draw  is 
full  of  interest  and  suggestion,  as  well  to  the  student  of 
legal  theory  as  to  the  constitutional  historian.  Some 
modern  theorists  derive  law  from  the  State,  and  cannot 
think  of  law  as  existing  without  a  State.  A  few  among 
them  have  in  England  gone  so  far  as  to  deny  that  Custo- 
mary Law  is  law  at  all,  and  to  define  all  Law  as  a  Com- 
mand issued  by  the  State  power.  But  here  in  Iceland  we 


ICELAND  281 

find  Law,  and  indeed  (as  will  appear  presently)  a  com- 
plex and  highly  developed  legal  system,  existing  with- 
out the  institutions  which  make  a  State  ;  for  a  community 
such  as  has  been  described,  though  for  convenience  it 
may  perhaps  be  called  a  Republic,  is  clearly  not  a  State 
in  the  usual  sense  of  the  word.  Of  Iceland,  indeed,  one 
may  say  that  so  far  from  the  State  creating  the  Law,  the 
Law  created  the  State — that  is  to  say,  such  State  organi- 
zation as  existed  came  into  being  for  the  sake  of  decid- 
ing lawsuits.  There  it  ended.  When  the  decision  had 
been  given,  the  action  of  the  Republic  stopped.  To 
carry  it  out  was  left  to  a  successful  plaintiff;  and  the  only 
effect  a  decision  had,  so  far  as  the  Courts  were  concerned, 
was  to  expose  the  person  resisting  it  to  the  penalties  of 
outlawry — that  is  to  say,  any  one  might  slay  him,  like 
Cain,  without  incurring  in  respect  of  his  death  any  lia- 
bility on  the  footing  of  which  his  relatives  could  sue  the 
slayer.  Law  in  fact  existed  without  any  public  responsi- 
bility for  enforcing  it,  the  sanction,  on  which  modern 
jurists  so  often  dwell  as  being  vital  to  the  conception  of 
law,  being  found  partly  in  public  opinion,  partly  in  the 
greater  insecurity  which  attached  to  the  life  of  the  per- 
son who  disregarded  a  judgement.  Yet  law  was  by  no 
means  ineffective.  Doubtless  it  was  often  defied,  and 
sometimes  successfully  defied.  That  happened  every- 
where in  the  earlier  Middle  Ages,  and  happens  to-day  in 
semi-civilized  peoples.  But  the  facts  that  the  Aiding 
maintained  so  active  a  judicial  life,  that  the  field  of  law 
was  cultivated  so  assiduously,  and  the  details  of  proce- 
dure worked  out  with  so  much  pains  and  art,  that  law- 
suits were  contested  so  keenly  and  skilfully — all  these 
facts  seem  to  prove  that  law  must  have  in  the  main  had 
its  course  and  prevailed,  for  it  is  hard  to  suppose  that  all 
this  time  and  pains  would  have  been  during  two  centuries 
or  more  devoted  to  a  pursuit  which  had  no  practical  re- 
sult. The  contemporary  kingdoms  and  principalities  of 
the  earlier  Middle  Ages  lived  by  the  vigour  of  the  execu- 
tive. There  was  in  them  very  little  of  a  State  administra- 


282  PRIMITIVE  ICELAND 

tion,  and  the  law  was  in  most  or  all  of  them  older  than  the 
State — that  is  to  say,  it  had  existed  in  the  form  of  cus- 
toms recognized  and  obeyed  before  efficient  means  were 
provided  for  enforcing  it.  So  far  they  resembled  Ice- 
land ;  and  the  same  may  be  said  of  the  city  republics  of 
Italy  and  Germany.  But  Iceland  is  unique  as  the  ex- 
ample of  a  community  which  had  a  great  deal  of  law  and 
no  central  Executive,  a  great  many  Courts  and  no  au- 
thority to  carry  out  their  judgements. 

The  process  by  which  the  law  of  Iceland  grew,  though 
less  exceptional  than  was  its  political  constitution,  il- 
lustrates very  happily  the  origin  of  Customary  Law  and 
the  first  beginnings  of  legislation.  Law  springs  out  of 
usage.  The  gathering  of  the  neighbours  develops  into 
the  ping  or  local  assembly  of  Norway  and  the  Folk  Mot 
of  early  England.  It  treats  of  all  matters  of  common 
concern ;  and  as  it  is  the  body  before  whom  complaints  of 
wrong  are  laid,  it  adopts  by  degrees  regular  set  forms 
of  words  for  the  statements  of  a  grievance,  and  for  the 
replies  to  those  statements.  The  usages  become  recog- 
nized customs,  prescribing  the  cases  in  which  redress 
may  be  claimed  and  the  defences  by  which  the  claims 
may  be  repelled.  The  forms  of  words  grow  more  elabo- 
rate and  come  to  be  considered  so  essential  that  a  varia- 
tion from  them  vitiates  the  claim.  The  body  of  rules 
thus  formed  becomes  so  large  that  only  a  few  men,  de- 
voting themselves  to  the  subject,  are  able  to  carry  the 
whole  in  their  memory.  These  men,  proud  of  their 
knowledge,  elaborate  the  rules,  and  particularly  the  set 
forms  of  words,  still  further,  and  in  their  enjoyment  of 
technicalities  attach  more  and  more  importance  to  for- 
mal accuracy.  Thus  Custom,  which  was  loose  and  vague 
while  held  in  solution  in  the  minds  of  the  mass,  becomes 
crystallized  into  precision  by  the  labour  of  the  few  whose 
special  knowledge  gives  them  a  sort  of  pre-eminence, 
and  even  a  measure  of  power.  Then  it  is  found  that 
there  are  diversities  of  opinion  among  the  experts  in  the 
law,  or  instances  arise  which  show  that  some  custom 


PRIMITIVE  ICELAND  283 

generally  accepted  is  inconvenient.  By  this  time  Cus- 
tom has  acquired  so  much  authority  that  the  assembly, 
which  ha3  been  also,  and  perhaps  primarily,  a  law  court, 
does  not  venture  to  transgress  it,  the  men  of  legal  learn- 
ing being  of  course  specially  opposed  to  such  a  course. 
It  therefore  becomes  necessary  formally  to  change  the 
Custom  by  a  resolution  of  the  body  which  is  at  once  the 
Assembly  and  the  Court.  As  this  body  consists  of  those 
who  use,  and  whose  progenitors  have  created,  the  cus- 
tom, and  as  it  continues  to  settle  other  matters  of  com- 
mon concern  affecting  the  district,  it  is  the  proper  and 
only  body  to  make  the  change.  This,  then,  is  legislation 
in  its  early  stage.  The  law  produced,  which  we  may  call 
Statute  Law,  is  for  many  generations  extremely  small 
in  proportion  to  the  mass  of  law  which  rests  upon  Cus- 
tom only.  But  the  Statute  Law  is  important  because 
it  is  explicit,  because  it  is  sure  to  be  remembered,  be- 
cause it  deals  with  points  comparatively  large,  since  it 
would  not  be  worth  while  to  submit  small  ones  to  the 
assembly.  Nevertheless  legislation  is  among  all  peoples 
the  smallest  part  of  the  work  of  primitive  assemblies, 
be  they  pings  or  Folk  Mots  or  Agorai  or  Comitia.  And 
the  growth  of  the  law  of  Iceland  by  custom,  preserved 
and  elaborated  by  a  succession  of  law-sages,  occasionally 
(though  rarely)  altered  or  added  to  by  the  vote  of  the 
Alj'ing,  presents  a  lively  picture  of  what  must  have  been 
the  similar  process  of  the  construction  of  early  Roman 
law  by  the  jurists  (prudcntcs)  and  assembly  (comitia). 

Iceland,  however,  provided  a  means  for  the  ascertain- 
ment and  publicity  of  her  law  which  Rome  lacked.  The 
LogsogumaSr  is  an  elegant  (using  the  word  in  its  strict 
Roman  sense)  complement  to  a  system  of  Customary 
Law.  His  function  was  well  designed  to  meet  and  cure 
the  two  chief  defects  in  such  a  system,  the  uncertainty 
which  existed  as  to  what  the  rules  accepted  as  law  were 
and  the  difficulty  which  an  individual  desiring  to  take  or 
defend  legal  proceedings  found  in  discovering  what  the 
rule  applicable  to  his  case  really  was.  The  solemn  reci- 


284  PRIMITIVE  ICELAND 

tation  of  the  whole  law  fixed  it  in  the  recollections  of 
those  who  busied  themselves  with  such  matters,  and 
gave  everybody  an  opportunity  of  knowing  what  it  co- 
vered. The  right  to  interrogate  the  living  depositary  of 
the  law  as  to  any  special  point  whereanent  the  querist 
desired  to  be  informed  was  a  great  boon  to  private  per- 
sons, who,  since  they  might  often  have  to  suffer  from 
the  extreme  technicality  of  procedure,  needed  all  the 
more  to  be  warned  beforehand  where  the  pitfalls  lay. 
In  these  respects  the  Icelandic  system  contrasts  favour- 
ably with  those  of  early  Rome  and  early  England.  Till 
the  Twelve  Tables  were  enacted  the  private  citizen  of 
Rome  had  no  means  of  ascertaining  the  law  except  by 
asking  some  sage,  who  need  not  answer  unless  he 
pleased,  and  whose  view  had  no  authority  beyond  that 
which  his  personal  reputation  implied.  Even  after  the 
Twelve  Tables  had  reduced  much  of  the  ancient  Custo- 
mary Law  to  shape,  and  made  it  accessible  to  the  citi- 
zens at  large,  many  of  the  forms  of  procedure,  and  the 
rules  as  to  the  days  on  which  legal  proceedings  could  be 
taken,  were  kept  concealed  by  the  patrician  men  of  law 
till  divulged  (at  the  end  of  the  fourth  century  B.C.)  by 
Cn.  Flavins.  In  England  there  was  indeed  no  similar 
effort  to  keep  legal  knowledge  within  the  hands  of  a 
few.  But  the  customs  were  numerous,  and  many  of 
them  were  uncertain.  There  was  no  way  of  ascertain- 
ing them  except  by  the  judgement  of  a  Court,  a  tedious 
and  expensive  process,  which  after  all  decided  only  the 
particular  point  that  arose  in  the  case  that  occasioned 
the  judgement.  That  means  of  determining  a  custom 
to  be  valid  and  binding  which  the  Icelanders  had  already 
secured  through  their  official  in  the  last  half  of  the  tenth 
century  did  not  begin  to  be  created  by  the  action  of  the 
English  Courts  till  the  end  of  the  twelfth,  and  centuries 
were  needed  to  complete  the  process. 

One  of  the  things  that  most  awakens  our  surprise  in 
the  Icelandic  Constitution  is  its  extreme  complexity.  In 
one  sense  simple  and  even  rude,  since  it  omits  so  much 


PRIMITIVE  ICELAND  285 

we  should  have  expected  to  find  in  a  constitution,  it  is 
in  another  sense  intricate,  and  puzzles  us  by  the  artificial 
character  of  the  arrangements  made  for  the  composition 
of  the  various  courts  and  of  the  legislative  body,  while 
the  multiplicity  of  pings,  and  the  distribution  of  powers 
among  them,  has  given  rise  to  many  controversies 
among  historians,  some  still  unsettled.  This  pheno- 
menon, however,  finds  a  parallel  in  some  of  the  constitu- 
tions of  the  Greek  republics,  not  to  speak  of  the  elabo- 
rate systems  of  such  cities  as  Florence  and  Venice  in  the 
fourteenth  century.  In  Iceland  the  strong  sense  of  inde- 
pendence which  distinguished  the  Norsemen,  and  the 
jealousy  the  chiefs  had  of  one  another,  made  it  necessary 
to  devise  means  for  securing  equality  and  for  preventing 
the  influence  of  any  group  or  district  from  attaining 
predominance.  Herein  the  spirit  of  the  Icelandic  Con- 
stitution is  singularly  unlike  that  of  the  Roman.  There, 
the  intense  realization  of  the  unity  of  the  city  and  the 
need  for  giving  its  government  the  maximum  of  con- 
centration against  neighbouring  enemies  caused  vast 
powers  to  be  entrusted  first  to  the  King  and  then  to  the 
Consuls  or  to  a  .dictator.  In  Iceland,  where  no  such 
need  of  defence  existed,  where  there  was  no  foreign 
enemy,  and  men  lived  scattered  in  tiny  groups  round 
the  edges  of  a  vast  interior  desert,  no  executive  powers 
were  given  to  anybody,  and  elaborate  precautions  were 
taken  to  secure  the  rights  of  the  smaller  communities 
which  composed  the  Republic  and  of  the  priest-chieftains 
who  represented  them. 

A  like  intricate  character  recurs  in  the  system  of  legal 
procedure,  but  the  cause  is  different  and  not  peculiar  to 
Iceland.  The  excessive  technicality  of  Icelandic  pro- 
cess, and  the  stress  laid  upon  exact  compliance  with  its 
rules,  belong  to  that  stage  of  the  human  mind  in  which 
form  and  matter  have  not  yet  been  separated,  and  in 
which  the  respect  for  usage  and  tradition  outweighs  the 
sense  of  substantial  justice.  Simplicity  in  legal  matters, 
instead  of  characterizing  the  state  of  nature,  is  the  latest 


286  PRIMITIVE  ICELAND 

legal  achievement  of  a  civilized  age.  In  accounting  for 
the  strictness  of  adherence  to  the  letter,  we  must  allow 
something  for  the  dread,  natural  enough  in  such  an  age, 
that  if  deviations  from  the  letter  of  the  law  were  over- 
looked, if  what  we  should  call  a  power  of  amendment  on 
matters  of  form  were  entrusted  to  the  Court,  such  dis- 
cretion would  be  abused  and  confidence  in  the  Courts 
destroyed.  But  the  reason  is  chiefly  to  be  found,  as  in 
the  parallel  case  of  those  older  forms  of  Roman  proce- 
dure which  continued  terribly  technical  till  the  time  of 
Cicero,  and  as  in  the  case  of  our  own  older  law,  to  the 
conservative  spirit  of  the  lawyers,  attached  to  the  forms 
they  had  received  and  studied,  and  taking  a  professional 
pride  in  working  out  their  methods, a  pride  all  the  greater 
the  more  technical  those  methods  were,  because  the 
more  intricate  the  technicalities  the  higher  the  impor- 
tance of  the  few  who  had  mastered  them.  Substantial 
justice  is  all  the  layman  cares  for.  With  the  lawyer  it 
is  otherwise.  An  eminent  English  judge  used  to  remark 
that  of  the  questions  argued  before  him,  counsel  showed 
most  interest  in  points  of  practice,  costs  came  next, 
while  the  merits  of  the  case  were  last.  The  late  Baron 
Parke  (Lord  Wensleydale)  was  a  type  of  the  kind  of 
mind  which  flourished  in  Iceland  in  the  eleventh  cen- 
tury ;  and  it  was  a  type  useful  in  its  way,  a  type  which 
ought  always  to  be  represented  in  the  legal  profession, 
for  reverence  for  tradition  and  an  acute  interest  in  the 
exactitude  of  form  are  hardly  less  necessary  than  a  philo- 
sophic spirit  and  a  zeal  for  progress. 

How  keen  was  the  taste  for  legal  subtleties  and  in- 
tricacies is  shown,  not  only  by  the  existence  of  schools 
of  law  in  Iceland — young  men  gathering  round  sages 
like  Njal  or  Skapti  Thoroddsson,  just  as  the  well-born 
youth  of  Rome  frequented  the  house  of  Tib.  Corun- 
canius  or  Q.  Mucius  Scaevola — but  also  by  the  evident 
enjoyment  which  the  authors  of  the  Sagas  show,  and 
which  their  public  must  evidently  have  taken,  in  the  steps 
in  a  lawsuit,  or  in  the  telling  of  some  incident  which 


PRIMITIVE  ICELAND  287 

raises  a  nice  point  of  procedure.  In  no  other  literature 
is  fiction  or  history,  by  whichever  name  we  describe  the 
Sagas,  so  permeated  by  legal  lore. 

Our  knowledge  of  the  substance  of  early  Icelandic 
law  is  derived  partly  from  references  or  allusions  in  the 
Sagas,  partly  from  some  ancient  law-books,  the  oldest  of 
which  belongs  to  the  period  of  the  Republic,  and  was 
compiled,  probably  about  the  middle  of  the  twelfth  cen- 
tury, out  of  materials  some  of  them  much  older,  and 
reaching  back  into  the  eleventh  and  even  the  tenth.  Sta- 
tutes had  been  gassed  during  the  course  of  the  tenth  cen- 
tury, and  the  Ulfljotslog^of  A.D.  930  is  spoken  of  as  a 
body  of  law  prepared  by  Ulfljot  after  his  journey  to  Nor- 
way and  accepted  by  the  Aiding,  though  it  was  probably 
a  redaction  of  existing  Norse  customs,  and  does  not 
seem  to  have  been  reduced  to  writing,  as  indeed  it  is 
improbable  that  any  laws  were  written  before  the  be- 
ginning of  the  twelfth  century.  The  next  effort  at  what 
has  been  called  a  codification  of  the  law  was  made  nearly 
two  centuries  after  tllfljot  (about  A.D.  1117),  when  a 
small  commission  was  appointed  which  examined  the 
customs,  rejected  some,  approved  or  amended  others, 
and  created  what  is  described  as  a  sort  of  systematic  col- 
lection. This  is  usually  known  as  the  HafliSaskra,  from 
a  prominent  GoSi  and  lawyer  HafliSi  Marsson,  who  was 
a  member  of  the  commission.  This  law  is  stated  to  have 
been  accepted  by  the  Aiding,  and  was  no  doubt  pre- 
served in  writing,  as  the  name  Skra  (scroll)  conveys. 

The  later  book  which  used  to  be  described  as  a  Code 
survives  in  two  MSS.,  differing  a  good  deal  from  one 
another,  and  is  commonly  known  as  Gragas  ('  Grey- 
Goose  ') 1.  It  is,  however,  really  not  a  Code  at  all,  and 
not  even  a  single  law-book,  but  a  mass  of  matter  of 
different  dates  and  origins  never  reduced  to  any  sort  of 

1  The  name  Grdgds  (probably  drawn  from  the  binding  in  which  a  copy  of  it 
was  preserved)  seems  to  have  originally  belonged  to  a  MS.  of  the  Frostapingslog, 
the  law  which  prevailed  round  Throndhjem  in  Norway,  and  to  have  been  applied 
by  mistake  in  the  seventeenth  century  to  this  Icelandic  collection  of  customs,  first 
published  by  the  Arnamagnacan  foundation  in  1829. 


288  PRIMITIVE  ICELAND 

unity.  There  are  ordinances  of  the  Alping,  decisions 
and  declarations  delivered  by  Law-Speakers,  ecclesiasti- 
cal regulations,  formulas  of  legal  procedure  or  legal 
transactions,  memoranda  of  customs  which  seemed  to 
those  who  recorded  them  to  have  obtained  recognition 
and  validity.  It  is  full  of  instruction  as  a  picture  of 
primitive  Teutonic  institutions  and  life ;  and  it  throws 
a  good  deal  of  light  both  on  the  law  of  early  England — 
English  and  Anglo-Norman — and  upon  some  of  the 
most  curious  features  of  early  Roman  law.  Sometimes 
the  references  to  the  deliverances  of  a  Law-Speaker  as 
originating  a  rule  make  us  think  of  the  Roman  Praetor, 
sometimes  the  concisely  phrased  records  of  what  was 
settled  by  the  Logretta  remind  us  of  our  English  reports 
of  the  judgements  of  the  King's  Courts  in  their  early 
forms ;  while  in  one  point  the  collection  as  a  whole  has 
a  character  which  belongs  to  the  earlier  law-books  as 
well  of  Rome  as  of  England.  Though  the  statutes  of 
the  Aljnng  are  the  most  distinctly  authoritative  rules  it 
contains,  much  whose  authority  would  seem  doubtful 
to  a  modern  is  set  down  in  a  way  which  clearly  implies 
that  it  did  possess  authority.  The  line  between  abso- 
lutely binding  law  and  all  other  law  is  not  sharply  drawn ; 
indeed  no  such  line  exists.  That  which  is  recorded  may 
be  only  a  single  instance  of  the  observance  of  an  alleged 
custom.  It  may  be  only  the  expression  of  the  individual 
opinion  of  some  learned  16gmat5r  (Lawman = jurist). 
Nevertheless  it  is  a  record  which  has  come  down  from 
the  past,  and  by  which  therefore  the  men  of  the  present 
may  seek  to  be  guided. 

In  the  law  of  Iceland,  as  it  is  presented  in  this  ancient 
collection,  we  have,  as  in  the  Constitution  of  the  island 
and  the  system  of  the  Courts,  a  striking  contrast  be- 
tween the  rudeness  of  an  extremely  archaic  society,  in 
which  private  war  is  constantly  going  on,  piracy  is  an 
honourable  occupation,  slavery  exists,  and  there  is  no 
State  administration  and  very  little  use  of  writing,  and 
the  refined  intricacy  of  a  system  of  law  which  makes 


PRIMITIVE  ICELAND  289 

elaborate  provision  for  the  definition  of  legal  rights  and 
their  investigation  and  determination  by  legal  process. 
The  time  of  day  is  fixed  by  guessing  at  the  height  of 
the  sun  above  the  horizon.  The  wife  is  purchased.  A 
father  may  deliver  his  child  into  slavery,  no  doubt  (as  in 
early  Rome),  a  qualified  slavery,  for  the  payment  of  his 
debts,  and  the  insolvent  debtor  may  be  made  a  slave. 
But,  on  the  other  hand,  there  are  rules,  not  unlike  those 
of  our  modern  Courts  of  Equity,  regulating  the  guar- 
dianship of  the  property  of  a  minor,  and  permitting  a 
portion  of  it  to  be  applied  to  the  support  of  his  indigent 
father,  brother  or  sister  *.  There  are  careful  distinctions 
as  to  who  may  sue  for  the  penalty  for  homicide.  If  the 
slain  man  is  an  Icelander,  the  action  goes  first  to  the  son, 
then  to  the  nearest  blood  relation,  then  to  the  local  GoSi, 
then  to  any  member  of  the  same  Quarter,  then  to  any 
citizen  (a  sort  of  actio  popularis).  If  the  slain  man  was 
not  an  Icelander,  but  one  who  used  the  '  Danish  (or 
northern)  tongue,'  i.e.  if  he  was  either  a  Norseman  or 
a  Dane  or  a  Swede,  then  any  relative  may  sue;  if  a 
stranger  of  any  other  nationality,  only  a  father,  son  or 
brother  may  sue.  But  for  the  protection  of  persons 
coming  in  a  ship,  the  comrade  or  partner2  of  the  de- 
ceased, whom  failing,  the  skipper  who  has  the  largest 
share  in  the  ship,  is  a  proper  plaintiff. 

It  is  curious  to  note  that,  although  homicide  and  mur- 
der were  common,  the  punishment  of  death  is  never 
prescribed,  even  as  in  two  or  three  of  the  Southern 
States  of  America  the  death  penalty  is  seldom  inflicted, 
while  *  shootings  at  sight '  and  lynchings  abound.  And 
an  interesting  resemblance  to  early  Roman  law  may  be 
found  in  the  extreme  severity  of  the  law  of  slander  and 
libel.  The  truth  of  a  defamatory  statement  is  no  defence. 
To  affix  a  nickname  to  a  man  is  punishable  by  banish- 

1  This  rule  is  ascribed  to  GuSmund  Thorgeirsson,  who  was  Law-Speaker  from 
1123  to  1135  A.D. 

2  Partner  is  fe"lagi  (English  'fellow').     Many  further  rules  on  this  point  are 
contained  in  the  passage,  Gragas,  chap,  xxxvii  (vol.  ii.  pp.  71-73  of  the  Arna- 
magnaean  edition). 

19 


290  PRIMITIVE  ICELAND 

ment.  No  verses  are  to  be  made  on  a  man,  even  in  his 
praise,  without  his  leave  first  obtained;  and  one  who 
teaches  or  repeats  the  verses  made  by  another  incurs  an 
equal  penalty,  the  remedy  extending  even  to  verses  made 
against  the  memory  of  the  dead.  A  love  poem  addressed 
to  a  woman  is  actionable,  the  action  being  brought  by 
her  guardian  if  she  is  under  twenty  years  of  age  1. 

Of  the  ramifications  of  the  system  of  procedure  into 
all  sorts  of  Courts,  besides  the  regular  pings,  I  have  no 
space  to  speak ;  but  one  singular  illustration  of  the  faith 
which  the  Icelanders  had  in  the  efficacy  of  legal  remedies 
deserves  to  be  given,  because  in  it  these  remedies  reach 
beyond  the  present  life.  It  comes  from  the  Eyrbyggja 
Saga,  one  of  the  most  striking  of  the  old  tales. 

A  chief  named  Thorodd,  living  at  Fro(a  in  BreiSifjorS, 
on  the  west  side  of  Iceland,  had  just  before  Yule-tide 
been  wrecked  and  drowned  with  his  boat-companions  in 
the  fjord.  The  boat  was  washed  ashore,  but  the  bodies 
were  not  recovered.  Thereupon  his  wife  ThuriS  and 
his  eldest  son  Kjartan  bade  the  neighbours  to  the  fune- 
ral feast ;  but  on  the  first  night  of  the  feast,  as  soon  as  the 
fire  was  lighted  in  the  hall,  Thorodd  and  his  companions 
entered,  dripping  wet,  and  took  their  seats  round  it. 
The  guests  welcomed  them  :  it  was  held  that  those  would 
fare  well  with  Ran  (the  goddess  of  the  deep  sea)  who 
attended  their  own  funeral  banquet.  The  ghosts,  how- 
ever, refused  to  acknowledge  any  greetings,  and  re- 
mained seated  in  silence  till  the  fire  had  burnt  out,  when 
they  rose  and  left.  Next  night  they  returned  at  the  same 
time  and  behaved  in  the  same  way,  and  did  so,  not  only 
every  night  while  the  feast  lasted,  but  even  afterwards. 
The  servants  at  last  refused  to  enter  the  fire-hall,  and  no 
cooking  could  be  done,  for  when  a  fire  was  lit  in  another 
room,  Thorodd  and  his  companions  went  there  instead. 
At  last  Kjartan  had  a  second  fire  lit  in  the  hall,  leaving 
the  big  one  to  the  ghosts,  so  the  cooking  could  now  be 

1  See  Grdgds,  chaps,  civ-cviii,  pp.  143-156  of  vol.  ii.  in  the  Arnamagnaean  edi- 
tion. 


PRIMITIVE  ICELAXD  291 

done.  But  men  died  in  the  house,  and  ThuritS  herself 
fell  ill,  so  Kjartan  sought  counsel  of  his  uncle  Snorri,  an 
eminent  lawyer  and  the  leading  Go$i  of  Western  Ice- 
land. By  Snorri's  advice  Kjartan  and  seven  others  with 
him  went  to  the  hall  door  and  formally  summoned  Tho- 
rodd  and  his  companions  for  trespassing  within  the 
house  and  causing  men's  deaths.  Then  they  named  a 
Door-Court  (Dyradomr)  and  set  forth  the  suits,  follow- 
ing all  the  regular  procedure  as  at  a  ping-Court.  Ver- 
dicts were  delivered,  the  cases  summed  up  and  judge- 
ment given;  and  when  the  judgement  word  was  given  on 
each  ghost,  each  rose  and  quitted  the  hall,  and  was  never 
seen  thereafter. 

Ghosts  have  given  much  trouble  in  many  countries, 
but  it  is  only  the  Icelanders  who  have  dealt  with  them 
by  an  action  of  ejectment. 

Although  it  is  a  remarkable  evidence  of  the  political 
genius  of  the  Norsemen  that  they  should  have  been  able 
to  work  at  all  a  legal  system  such  as  has  been  described, 
it  need  hardly.be  said  that  it  did  not  work  smoothly. 
The  Icelanders  were  a  people  of  warriors,  little  accus- 
tomed to  restrain  their  passions,  and  holding  revenge 
for  a  sacred  duty.  The  maintenance  of  order  at  the 
Aiding  was  entrusted  to  the  GoSi  of  the  spot,  and  it  was 
strictly  forbidden  to  wear  arms  while  the  meeting  lasted. 
The  closing  of  the  Alping  was  called  Vapnatak  (weapon- 
taking,  wapentake),  because  the  arms  that  had  been  laid 
aside  were  taken  when  men  started  to  ride  home  from 
the  ping.  But  the  arms  were  after  all  only  left  in  the 
booth,  and  more  than  once  it  happened  that  the  party 
which  found  itself  unsuccessful  in  a  lawsuit  seized  sword 
and  spear  and  fought  out  the  issue  in  a  bloody  battle, 
from  which  sprang  again  new  blood-feuds  and  new  law- 
suits. It  is  not  very  often  that  the  Sagas  give  us  a 
glimpse  of  the  conduct  of  business  at  the  Al]-ing;  but 
one  such  lawsuit,  followed  by  a  combat,  which  arose 
when  the  suit  broke  down  on  a  technical  point,  is  de- 
scribed with  wonderful  force  and  spirit  in  the  famous 


292  PRIMITIVE  ICELAND 

Saga  of  Njal  Thorgeirsson,  a  masterpiece  of  literature 
in  the  freshness  and  brilliance  of  its  narrative. 

We  hear  occasionally  of  the  passing  of  particular  laws 
at  an  Aiding.  In  A.D.  994,  for  instance,  it  was  enacted 
that  the  suit  for  compensation  for  homicide  which  was 
brought,  according  to  the  general  practice  of  the  north- 
ern nations,  by  and  for  the  benefit  of  the  nearest  relatives 
of  the  slain,  a  right  which  has  survived  in  the  law  of 
Scotland  under  the  name  of  Assythment,  and  has  been 
partially  introduced  into  the  law  of  England  by  the  Act 
9  &  10  Viet.  c.  93  (commonly  called  Lord  Campbell's 
Act),  should  in  future  not  be  brought  by  a  woman  or  by 
a  child  under  sixteen  years  of  age,  but  by  the  nearest 
male  relative.  This  provision  was  suggested  by  a  case 
that  had  occurred  just  before,  when  inadequate  compen- 
sation had  been  recovered  for  the  slaughter  of  a  chief- 
tain named  Arnkel,  owing  to  the  mismanagement  of  the 
suit  by  his  widow.  Again,  in  A.D.  1006  we  are  told  of 
the  abolition  of  the  judicial  combat  on  the  occasion  of 
an  indecisive  duel  between  the  poet  and  Viking  Gunn- 
laug  Ormstunga  (Snake's  tongue  J)  and  another  poet 
named  Hrafn,  the  details  of  which  are  recorded  in  one 
of  the  most  beautiful  and  touching  of  the  early  Sagas. 
Gunnlaug  had  been  betrothed  to  Helga  the  Fair,  one  of 
the  most  famous  heroines  of  Icelandic  story,  but  having 
been  detained  in  England  by  King  Ethelred  II,  whose 
guest  he  had  previously  been  in  London  2  and  whose 
praises  he  had  been  celebrating  in  verse,  had  failed  to 
return  at  the  appointed  time,  and  found  Helga,  who  had 
yielded  to  the  importunities  of  her  relatives,  already 
married  to  Hrafn.  According  to  the  custom  of  the 
North,  which  then  allowed  any  man  to  require  another 
either  to  give  up  his  wife  and  all  his  property  or  defend 
her  and  it  by  arms,  Gunnlaug  came  to  the  Aiding  and 

'"  So  called  from  his  satirical  powers. 

3  The  Saga  says  (Gunnlaugs  Saga  Ormstungu^  chap,  vii)  that  in  the  days  of 
Ethelred  son  of  Edgar  (A'Salrd'Sr  Jdtgeirsson)  the  same  tongue  was  spoken  in 
England  and  Denmark  as  in  Norway,  and  that  this  continued  in  England  till  Will- 
iam the  Bastard  won  England,  after  vhom  Welsh  (Valsk  =  French)  was  spoken. 


PRIMITIVE  ICELAND  293 

formally  challenged  Hrafn,  and  they  fought,  each  with 
his  second,  a  solemn  duel  on  the  island  in  the  Oxara 
which  was  set  apart  for  that  purpose.  A  dispute  arose 
after  the  first  encounter,  and  the  combatants  were  sepa- 
rated. Gunnlaug  wished  to  resume  the  combat,  but  the 
law  already  referred  to,  prohibiting  formal  duels  in  fu- 
ture, was  passed  next  day  by  the  Logretta ;  and  he  un- 
willingly obeyed,  for  a  breach  of  it  would  have  exposed 
him  to  the  penalties  of  outlawry.  Helga,  however,  re- 
fused to  live  any  longer  with  her  husband  Hrafn,  and 
next  year  the  two  rivals  sailed  by  agreement  to  Norway, 
just  as,  fifty  years  ago,  persons  fearing  to  fight  a  duel 
in  England  used  to  cross  to  Calais  for  the  purpose. 
Years  passed  before  they  met  in  the  wild  country  east 
of  Throndhjem.  There  they  fought  out  their  quarrel. 
Gunnlaug  smote  off  his  enemy's  foot,  and  then  proposed 
to  stop  the  combat.  Hrafn  however,  supporting  him- 
self against  a  tree,  wished  to  fight  on,  but  as  he  was 
tortured  by  thirst,  he  besought  his  opponent  to  fetch  him 
a  draught  of  water  from  a  brook  hard  by,  promising  not 
to  deceive  him.  The  chivalric  Gunnlaug  brought  the 
water  in  his  helmet,  whereupon  Hrafn,  taking  the  water 
with  his  left  hand,  suddenly  raised  his  sword  and,  with 
all  his  remaining  strength,  smote  Gunnlaug  on  his  bared 
head.  '  Thou  hast  done  ill  and  deceived  me/  said  Gunn- 
laug, '  seeing  that  I  trusted  you.'  '  So  is  that,'  answered 
Hrafn,  '  but  I  grudged  thee  the  love  of  Helga  the  Fair.' 
Then  they  fought  on.  Hrafn  was  slain,  and  in  a  few 
hours  Gunnlaug  died  of  his  wounds1.  The  news  was 
brought  to  Iceland,  and  after  a  time  Helga,  thinking 
ever  of  Gunnlaug,  and  often  spreading  out  upon  her 
knees  a  garment  which  Gunnlaug  had  given  to  her,  pined 
away  and  died  likewise. 

Another  striking  scene  at  the  Aiding  has  been  pre- 

1  The  Saga  adds  that  very  shortly  after  the  combat,  and  long  before  the  news 
of  it  could  have  reached  Iceland,  the  ghosts  both  of  Gunnlaug  and  of  Hrafn  ap- 
peared in  dreams  to  their  respective  fathers  in  Iceland,  and  recited  poems  describ- 
ing their  deaths.  Illugi  the  Black,  Gunnlaug's  father,  remembered  the  poem  he 
heard  and  repeated  it  aloud  next  day.  The  Saga  gives  both  poems.  This  is  one 
of  the  earliest  Teutonic  instances  of  a  death-apparition. 


294  PRIMITIVE  ICELAND 

served  to  us  in  the  Saga  which  relates  the  introduction 
of  Christianity.  King  Olaf  Tryggvason,  the  most  bril- 
liant of  all  the  Norwegian  sovereigns,  who,  having  been 
himself  converted  some  ten  years  before,  was  hard  at 
work  converting  the  stubborn  Norwegians  by  burning 
their  houses  and  torturing  themselves,  had  sent  two 
missionaries  to  Iceland,  one  of  whom,  the  priest  Thang- 
brand,  had  been  obliged  to  leave  Norway  on  account  of 
his  violent  life,  and  who  signalized  himself  in  Iceland  by 
committing  two  murders  in  the  course  of  his  five 
months'  stay,  which  was  then  summarily  shortened. 
The  unworthiness  of  the  minister,  however,  does  not 
seem  to  have  injured  the  cause  he  championed.  Several 
men  of  note  embraced  the  new  faith,  which  was  of  course 
well  known  to  the  Icelanders  from  their  intercourse  with 
Ireland  and  Britain,  and  had  the  promise  of  the  future 
to  recommend  it.  These  men,  and  also  some  heathen 
chieftains  who  thought  that  acceptance  was  the  best  way 
of  avoiding  civil  war,  supported  the  envoys  of  Olaf, 
when,  at  the  Aljnng  of  the  year  1000,  they  urged  upon 
the  assembly  to  decree  the  abolition  of  paganism.  A 
story  goes  that,  while  the  debate  was  at  its  height,  a 
messenger  arrived  to  tell  that  a  volcano  had  broken  out 
thirty  miles  to  the  south,  and  was  pouring  a  flood  of  lava 
over  the  pastures.  The  heathen  party  accepted  the  news 
as  an  omen,  and  exclaimed,  '  This  is  the  wrath  of  the 
gods  at  these  new  rites ;  see  what  you  have  to  expect 
from  their  anger ! '  '  With  whom,  then,'  said  Snorri,  a 
leading  Got5i  who  had  not  yet  declared  himself,  '  with 
whom  were  the  gods  angry  when  this  rock  was  molten 
on  which  we  stand  ?  '  (pointing  to  the  deep  lava  rifts  that 
lay  around  the  Logberg).  By  the  interposition  of  the 
Law-Speaker  Thorgeir,  that  which  he  described  as  a 
compromise,  but  which  was  in  reality  a  surrender  by  the 
heathen  party,  was  at  the  same  Aiding  accepted.  The 
people  were  to  be  baptized  and  declare  themselves  Chris- 
tians, and  the  temples  and  images  of  the  old  gods  were 
to  be  destroyed ;  but  those  who  liked  to  sacrifice  at  home 


i:  U'I-:LAM>  205 

might  continue  to  do  so ;  and  two  heathen  customs,  the 
exposure  of  new-born  infants  and  the  eating  of  horse- 
flesh, were  to  be  permitted.  Some  difficulty  arose  over 
the  reluctance  of  those  who  came  from  the  North  and 
East  Quarters  of  the  island  to  submit  to  immersion  in 
cold  water;  but  this  difficulty  was  happily  overcome  by 
the  use  of  the  hot  springs  at  Reykir  for  the  rite. 

The  century  and  a  half  that  followed  the  introduction 
of  Christianity  was  the  most  brilliant  period  in  the  his- 
tory of  the  island.  It  was  not  indeed  a  time  of  peace, 
for  the  old  passions  and  the  old  superstitions  were  but 
little  altered.  Slayings  and  burnings  of  houses  with 
their  inmates  went  on  pretty  much  as  before.  But  there 
was  now  added  to  the  stimulus  which  their  free  republi- 
can life  and  their  piratical  expeditions  gave  to  the  na- 
tional spirit  the  influence  of  the  learning  and  ideas  which 
came  in  the  train  of  the  new  faith.  The  use  of  writing 
soon  spread,  and  the  magnificent  Sagas,  which  are 
among  the  noblest  monuments  of  Northern  genius,  were 
nearly  all  of  them  produced  in  this  age,  though  some 
were  not  committed  to  parchment  before  the  end  of  the 
twelfth  century. 

For  many  years  the  Constitution  of  the  Republic 
seems  to  have  undergone  no  great  alteration.  The 
establishment  of  Christianity  did  indeed  throw  consider- 
able power  into  the  hands  of  the  two  bishops, and  eventu- 
ally produced  a  strife  between  the  Church  and  the  tem- 
poral magnates  resembling  that  which  distracted  both 
the  Romano-Germanic  Empire  and  England.  This 
scarcely  affected  the  position  of  the  Go$i,  whose  autho- 
rity had  now  lost  so  much  as  it  originally  possessed  of  a 
religious  character.  Snorri,  whose  appeal  to  geology  is 
said  to  have  decided  the  Aljnng  against  paganism,  was 
himself  the  priest  of  the  most  famous  heathen  sanctuary 
of  the  island.  But  in  the  beginning  of  the  thirteenth 
century  the  delicately-framed  fabric  of  the  Republican 
Constitution  began  to  break  up.  The  tendency  of  a  fede- 
ration usually  is  to  become  less  of  a  federation  and  more 


2%  PRIMITIVE  ICELAND 

of  a  single  united  state.  But  in  Iceland  the  federal  bond, 
if  one  can  use  this  name,  was  always  weak,  and  when  a 
powerful  member  became  disobedient,  there  were  no 
legal  means  of  reducing  him  to  submission.  By  degrees 
the  number  of  priest-chieftainships  diminished,  the 
GoSorSs,  which  passed  not  only  by  inheritance  but  also 
by  gift  or  sale,  coming  to  be  accumulated  in  the  hands  of 
a  few  great  families,  who  thus  acquired  a  predominant  in- 
fluence at  the  Aiding,  were  virtually  masters  of  large  dis- 
tricts of  the  country,  and  marched  about  like  feudal  lords 
attended  by  petty  armies.  Thus  the  old  blood-feuds  as- 
sumed more  and  more  the  aspect  of  civil  wars.  Piracy 
was  now  less  practised,  because  the  countries  which  had 
formerly  been  ravaged  were  better  prepared  for  defence, 
so  the  energy  that  used  to  spend  itself  upon  the  coasts  of 
Scotland  and  Ireland,  of  North  Germany  and  Gaul,  was 
now  turned  inward,  and  with  fatal  results. 

I  am  not  writing  the  history  of  Iceland,  though  indeed 
I  wish  I  were  doing  so,  for  the  theme  is  a  fascinating 
one.  But  before  closing  these  scattered  observations, 
intended  to  stimulate  rather  than  to  satisfy  curiosity,  I 
will  add  three  remarks  suggested  by  the  sketch  that  has 
been  given. 

The  first  remark  is  that  Iceland  presents  one  of  the 
few  instances  in  history  of  a  breach  in  the  continuity 
of  institutional  development.  The  settlers  were  all  of 
Norse  stock ;  and  Norway  had  in  its  petty  communities  a 
rudimentary  system  of  institutions  not  unlike  that  de- 
scribed by  Tacitus  in  his  account  of  Germany,  or  that 
which  the  conquering  Angles  and  Saxons  brought  to 
Britain.  Each  community  was  an  independent  Fylki 
(folk).  In  each  Fylki  there  was  a  number  of  nobles,  one 
of  whom  stood  foremost  as  hereditary  chieftain,  and  a 
body  of  warlike  freemen,  as  well  as  a  certain  number  of 
slaves.  In  each  there  was  a  popular  assembly,  the  ping, 
corresponding  to  our  Saxon  Folk  Mot.  Now  owing  to 
the  way  in  which  the  settlers  had  planted  themselves 
along  the  coasts  of  Iceland,  and  to  the  fact  that  they 


PRIMITIVE  ICELAND  297 

were  less  closely  aggregated  there  than  men  had  been 
in  Norway,  this  organization  did  not  reappear  in  the 
new  land.  There  was  indeed  everywhere  a  ping,  for  the 
habit  of  meeting  to  deal  with  lawsuits  and  other  mat- 
ters of  common  interest  was  cherished  as  the  very  foun- 
dation of  society.  But  an  Icelandic  community  was  not 
a  Fylki.  It  was  not  an  old  natural  growth,  but  rather  a 
group  of  families  whose  tie  was  at  first  only  that  of  local 
proximity  and  thereafter  that  also  of  worship  at  a  com- 
mon temple.  The  Go$i,  though  he  became  the  centre 
of  this  group,  was  not  a  chieftain  with  a  hereditary  claim 
to  leadership,  and  was  not  necessarily  of  any  higher 
lineage  than  some  of  his  pingmen.  Such  eminent  and 
high-born  men  as  Njal  for  instance  and  Egil  Skalla- 
grimsson  were  not  GoSis.  The  GoSorS  was  really  a 
new  institution,  due  to  the  special  circumstances  of  Ice- 
land, and  apparently  without  precedent  among  the  Teu- 
tonic races.  Still  more  plainly  was  the  organization  of 
the  Republic  with  its  scheme  of  Courts  and  its  Logretta 
a  new  creation,  due  to  the  wisdom  and  public  spirit  of 
the  leading  men  of  the  nation,  and  not  a  purely  natural 
growth. 

Secondly,  as  the  Icelandic  Republic  is  a  new  form  of 
political  society,  so  the  Aiding,  in  which  the  unity  of 
the  Republic  found  visible  expression,  is  a  unique  body, 
which  cannot  be  referred  to  any  one  of  the  familiar  types 
of  assembly.  It  is  not  a  Primary  Assembly,  for  though 
all  freemen  are  present,  only  a  limited  number  of  persons 
are  entitled  to  exercise  either  judicial  or  legislative  func- 
tions. Neither  is  it  a  Representative  Assembly,  for  no 
one  was  elected  to  sit  in  it  as  a  delegate  from  others. 
The  GoSis  sat  each  by  his  own  right,  and  the  other  mem- 
bers as  nominees  of  the  GoSis.  Neither  again  is  it  a  sort 
of  King's  Council,  like  the  Curia  Regis  of  mediaeval 
England,  consisting  of  magnates  and  official  advisers 
summoned  by  a  monarch.  If  parallels  to  it  are  to  be 
sought,  they  are  to  be  sought  rather  in  bodies  such  as 
the  Roman  Senate  may  have  been  in  its  earlier  form,  a 


298  PRIMITIVE  ICELAND 

sort  of  council  of  the  heads  of  organized  communities ; 
yet  the  differences  between  the  Roman  gcntcs  and  the 
Icelandic  pingmen,  and  the  absence  of  an  executive 
magistrate  like  the  Roman  king,  make  the  parallel  any- 
thing but  close.  Still  more  remote  is  the  resemblance 
which  the  Aljnng  might  be  deemed  to  bear  to  the  coun- 
cil of  a  league,  such  as  was  the  Swiss  Confederation  be- 
fore 1799,  or  such  as  the  Diet  of  the  Romano-Germanic 
Empire  in  its  later  days. 

The  comparison  of  Iceland  to  a  federation  suggests 
a  third  question.  Why  did  not  the  Republic  develop  into 
a  united  State,  whether  republican  or  monarchical,  as  did 
most  of  the  nations  of  mediaeval  Europe  ? 

Out  of  several  reasons  that  might  be  assigned  I  will 
mention  three  only,  two  of  them  political,  the  third 
physical. 

In  Iceland  there  was  no  single  great  family  with  any 
hereditary  claim  to  stand  above  the  others,  while  all 
the  leading  families  were  animated  by  a  high  sense  of 
pride  and  a  pervading  sentiment  of  equality.  This  love 
of  equality  remains  among  the  sons  of  the  old  Norse- 
men both  in  Iceland  and  in  Norway,  and  is  indeed 
stronger  there  than  anywhere  else  in  Europe. 

Iceland  had  not,  and  could  not  have,  any  foreign  wars. 
There  was  therefore  no  external  strife  to  consolidate 
her  people,  no  opportunity  for  any  leader  to  win  glory 
against  an  enemy,  or  to  create  an  army  on  which  to  base 
his  power.  All  the  wars  were  civil  wars,  and  tended  to 
disunion. 

The  third  reason  is  to  be  found  in  the  nature  of  the 
country.  The  island,  larger  than  Ireland,  has  practically 
no  land  fit  for  tillage,  and  very  little  fit  even  for  pasture. 
Neither  has  it  any  internal  trade.  The  interior  is  occu- 
pied by  snow  mountains  and  glaciers  and  lava-fields  and 
wastes  of  black  volcanic  sand  or  pebbles.  Iceland  is 
really  one  huge  desert  with  some  habitable  spots  scat- 
tered along  its  coasts.  It  was  the  Desert  that  most  of 
all  destroyed  the  chances  of  political  unity  under  a  re- 


PRIMITIVE  ICELAND  299 

public  by  dividing  the  people  into  numerous  small 
groups,  far  removed  from  one  another,  and  in  many 
places  severed  by  rugged  and  barren  wastes,  or  by  tor- 
rents difficult  to  cross. 

Nevertheless,  although  the  Republic  was  evidently 
destined  to  perish,  it  is  possible  that  had  Iceland  been 
left  to  herself  the  rivalry  of  the  two  or  three  great  fac- 
tions which  divided  it,  and  were  usually  in  arms  against 
one  another,  would  have  ended  in  the  triumph  of  one 
of  them,  and  in  the  establishment  of  a  monarchy,  or  (less 
probably)  of  several  independent  rival  principalities. 
But  a  new  and  more  formidable  figure  now  appeared  on 
the  scene.  The  successors  of  King  Harald  the  Fair- 
haired  had  always  held  that  the  Icelanders,  since  their 
ancestors  had  come  from  Norway,  ought  to  own  their 
supremacy1,  and  they  argued  that  as  monarchical  gov- 
ernment was  divinely  appointed,  and  prevailed  every- 
where in  Continental  Europe,  no  republic  had  a  right 
to  exist.  King  Hakon  Hakonsson  (Hakon  IV),  one  of 
the  greatest  among  the  kings  of  Norway,  now  found  in 
the  distracted  state  of  the  island  a  better  opportunity 
of  carrying  out  the  plans  which  his  predecessors  Olaf 
Tryggvason  and  Olaf  the  Saint  had  been  obliged,  by  the 
watchfulness  of  the  Aiding,  to  abandon.  By  bribes  and 
by  threats,  by  drawing  the  leading  Icelanders  to  his 
Court,  and  sending  his  own  emissaries  through  the 
island,  he  succeeded  in  gaining  over  the  few  chiefs  who 
now  practically  controlled  the  Aiding,  and  at  the  meeting 
of  midsummer,  A.D.  1262  (one  year  before  the  battle  of 
Largs,  which  saved  Scotland  from  the  invasion  of  this 
very  Hakon),  the  Southern,  Western  and  Northern 
Quarters  accepted  the  King  of  Norway  as  their  sove- 
reign, while  in  1264  (the  year  of  the  summoning  of  the 
first  representative  Parliament  of  England  by  Earl 
Simon  de  Montfort)  the  remaining  districts  which  had 

1  This  claim  of  a  Crown  to  the  allegiance  of  emigrants  who  had  passed  into 
new  lands  reminds  one  of  that  made  by  the  British  Government,  down  to  1852  and 
1854,  as  respects  the  Dutch  farmers  who  had  gone  forth  into  the  wilderness  of 
South  Africa  in  1836. 


300  PRIMITIVE  ICELAND 

not  yet  recognized  the  Norwegian  Crown,  now  held 
by  Magnus  son  of  Hakon,  made  a  like  submission. 
Thenceforward  Iceland  has  followed  the  fortunes  first 
of  Norway  and  then  of  Denmark.  In  1814,  when  Nor- 
way was  severed  from  the  Danish  and  transferred  to  the 
Swedish  Crown,  Iceland  ought  to  have  gone  with  Nor- 
way. But  nobody  at  the  Congress  of  Vienna  knew  or 
cared  about  the  matter 1 :  and  so  Iceland  remains  at- 
tached to  Denmark,  for  which  she  has  little  love. 

With  the  free  republic  the  literature  which  had  given 
it  lustre  withered  up  and  disappeared.  Only  one  work 
of  high  merit,  the  religious  poem  called  The  Lily,  was 
produced  in  the  centuries  that  succeeded  down  to  the 
Reformation,  when  the  spirit  of  the  people  was  again 
stirred,  and  a  succession  of  eminent  writers  began  which 
has  never  failed  down  to  our  own  day.  But  in  the  dark- 
est times,  in  the  ignorance  and  gloom  of  the  fifteenth 
century,  in  the  pestilences  and  famine  caused  by  the  ter- 
rible volcanic  eruptions  of  the  eighteenth,  which  are 
said  to  have  destroyed  one-fifth  of  the  population,  the 
Icelanders  never  ceased  to  cherish  and  enjoy  their 
ancient  Sagas.  No  farmhouse  wanted  its  tiny  store  of 
manuscripts,  which  were  and  still  are  read  aloud  in  the 
long  nights  of  winter,  while  the  women  spin  and  the 
men  make  nets  and  harness.  And  it  is  beyond  doubt 
chiefly  owing  to  the  profusion  and  the  literary  splendour 
of  these  works  of  a  remote  antiquity — works  produced  in 
an  age  when  England  and  Germany,  Italy  and  France 
had  nothing  better  than  dull  monkish  annalists  or  the 
reciters  of  such  a  tedious  ballad  epic  as  the  Song  of  the 
Nibelungs — that  the  Icelandic  language  has  preserved 
its  ancient  strength  and  purity,  and  that  the  Icelandic 
nation,  a  handful  of  people  scattered  round  the  edge  of  a 
vast  and  dreary  wilderness,  has  maintained  itself,  in  face 
of  the  overwhelming  forces  of  nature,  at  so  high  a  level 
of  culture,  virtue  and  intelligence. 

1  The  preliminaries  to'the  Treaty  of  Kiel  by  which  Norway  was  severed  from 
the  Danish  Crown  to  be  attached  to  the  Swedish  refer  to  Iceland,  the  Faeroe 
Isles,  and  Greenland  as  having  '  never  belonged  to  Norway.' 


VI 

THE   UNITED    STATES    CONSTI- 
TUTION AS  SEEN  IN  THE  PAST 

THE  PREDICTIONS  OF   HAMILTON  AND  TOCQUEVILLE 

HE  who  desires  to  discover  what  have  been  the  main 
tendencies  ruling  and  guiding  the  development  of  Ameri- 
can institutions,  will  find  it  profitable  to  examine  what 
were  the  views  held  and  predictions  delivered,  at  dif- 
ferent epochs  in  the  growth  of  the  Republic,  by  acute 
and  well-informed  observers.  There  is  a  sort  of  dra- 
matic interest  in  this  method  of  inquiry,  and  it  is  calcu- 
lated to  temper  our  self-confidence  in  judging  the  pheno- 
mena of  to-day.  Besides,  it  helps  us  to  realize,  better 
than  we  can  do  merely  by  following  the  course  of  events, 
what  aspect  the  political  landscape  wore  from  time  to 
time.  When  we  read  a  narrative,  we  read  into  the  events 
our  knowledge  of  all  that  actually  flowed  from  them. 
When  we  read  what  the  contemporary  observer  ex- 
pected from  them  as  he  saw  them  happening  we  reach 
a  truer  comprehension  of  the  time. 

To  collect  and  set  forth  a  representative  anthology  of 
political  prophecies  made  at  critical  epochs  in  the  history 
of  the  United  States,  would  be  a  laborious  undertaking, 
for  one  would  have  to  search  through  a  large  number 
of  writings,  some  of  them  fugitive  writings,  in  order  to 
present  adequate  materials  for  determining  the  theories 
and  beliefs  prevalent  at  any  given  period.  I  attempt 


302  HAMILTON  AND   TOCQUEVILLE 

nothing  so  ambitious.  I  desire  merely  to  indicate,  by 
a  comparatively  simple  example,  how  such  a  method 
may  be  profitably  followed,  disclaiming  any  pretensions 
to  dig  deep  into  even  the  obvious  and  familiar  materials 
which  students  of  American  history  possess. 

For  this  purpose,  then,  I  will  take  two  famous  books 
— the  one  written  at  the  very  birth  of  the  Union  by  those 
who  watched  its  cradle,  and  recording  incidentally,  and 
therefore  all  the  more  faithfully,  the  impressions  and 
anticipations  of  the  friends  and  enemies  of  the  infant 
Constitution ;  the  other  a  careful  study  of  its  provisions 
and  practical  working  by  a  singularly  fair  and  penetrat- 
ing European  philosopher.  I  choose  these  books  not 
only  because  both  are  specially  representative  and  of 
rare  literary  merit,  but  because  they  are  easily  accessible 
to  European  as  well  as  American  readers,  who  may, 
by  referring  to  their  pages,  supply  the  omissions  which 
want  of  space  will  compel  me  to  make,  and  may  thereby 
obtain  a  more  full  and  graphic  transcript  of  contempo- 
rary opinion.  One  of  these  books  is  The  Federalist 1 — a 
series  of  letters  recommending  the  proposed  Constitu- 
tion for  adoption  to  the  people  of  New  York,  written  in 
1788  by  Alexander  Hamilton,  afterwards  Secretary  of 
the  Treasury,  James  Madison,  afterwards  President 
from  1809  to  1817,  and  John  Jay,  afterwards  Chief  Jus- 
tice from  1789  to  1795.  They  were  all  signed  Publins. 
The  other,  which  falls  not  quite  halfway  between  1788 
and  our  own  time,  is  the  Democracy  in  America  of  Alexis 
de  Tocqueville. 


I.     THE  UNITED  STATES  AT  THE  ADOPTION  OF  THE 
CONSTITUTION. 

I  begin  by  briefly  summarizing  the  record  which  The 
Federalist  preserves  for  us  of  the  beliefs  of  the  opponents 
and  advocates  of  the  Draft  Constitution  of  1787  regard- 

1  There  are  several  good  editions  of  The  Federalist.  The  latest  and  one  of  the 
best  known  to  me  is  that  edited  by  Mr.  Paul  Leicester  Ford  (New  York,  1898). 


HAMILTON  AND  TOCQVEVILLE  303 

ing  the  forces  then  at  work  in  American  politics  ancl 
the  probable  future  of  the  nation. 

To  understand  those  beliefs,  however,  we  must  bear 
in  mind  what  the  people  of  the  United  States  then  were, 
and  for  that  purpose  I  will  recall  the  reader's  attention 
to  some  of  the  more  salient  aspects  of  the  Republic  at 
the  epoch  when  its  national  life  began. 

In  1783  the  last  British  soldier  quitted  New  York,  the 
last  stronghold  that  was  held  for  King  George.  In  1787 
the  present  Constitution  of  the  United  States  was  framed 
by  the  Convention  at  Philadelphia,  and  in  1788  accepted 
by  the  requisite  number  of  States  (nine).  In  1789 
George  Washington  entered  on  his  Presidency,  the  first 
Congress  met  and  the  machine  began  to  work.  It  was 
a  memorable  year  for  Europe  as  well  as  for  America — 
a  year  which,  even  after  the  lapse  of  more  than  a  cen- 
tury, we  are  scarcely  yet  ripe  for  judging,  so  many  sor- 
rows as  well  as  blessings,  iroAAa  plv  cV0A.a  /ae/uy/xew,  TroAAa 
8c  Xvypd,  were  destined  to  come  upon  mankind  from 
those  elections  of  the  States-General  which  were  pro- 
ceeding in  France  while  Washington  was  being  installed 
at  Philadelphia. 

All  of  the  thirteen  United  States  lay  along  the  Atlantic 
coast.  Their  area  was  827,844  square  miles,  their  popu- 
lation 3,929,214,  little  more  than  half  the  population  of 
New  York  State  in  1900.  Settlers  had  already  begun  to 
cut  the  woods  and  build  villages  beyond  the  Alleghanies  ; 
but  when  Kentucky  was  received  as  a  State  into  the 
Union  in  1792,  she  had  a  population  of  only  80,000.  The 
population  was  wholly  of  English  (or  Anglo-Scottish) 
stock,  save  that  a  few  Dutch  were  left  in  New  York,  a 
few  persons  of  Swedish  blood  in  Delaware,  and  some 
isolated  German  settlements  in  Pennsylvania.  But  in 
spite  of  this  homogeneity  the  cohesion  of  the  States  was 
weak.  Communication  was  slow,  difficult  and  costly. 
The  jealousies  and  suspicions  which  had  almost  proved 
fatal  to  Washington's  efforts  during  the  War  of  Inde- 
pendence were  still  rife.  There  was  some  real  conflict, 


304  HAMILTON  AND  TOCQUEVILLE 

and  a  far  greater  imagined  conflict,  of  interests  between 
the  trading  and  the  purely  agricultural  States,  even  more 
than  between  the  slave  States  and  those  in  which  slavery 
had  practically  died  out.  Many  competent  observers 
doubted  whether  the  new  Federal  Union,  accepted  only 
because  the  Confederation  had  proved  a  failure  and  the 
attitude  of  foreign  powers  was  threatening,  could  main- 
tain itself  in  the  face  of  the  strong  sentiment  of  local 
independence  animating  the  several  colonies,  each  of 
which,  after  throwing  off  the  yoke  of  Britain,  was  little 
inclined  to  brook  any  control  but  that  of  its  own  legisla- 
ture. The  new  Constitution  was  an  experiment,  or 
rather  a  bundle  of  experiments,  whose  working  there 
were  few  data  for  predicting.  It  was  a  compromise,  and 
its  own  authors  feared  for  it  the  common  fate  of  compro- 
mises— to  satisfy  neither  party  and  to  leave  open  rents 
which  time  would  widen.  In  particular,  it  seemed  most 
doubtful  whether  the  two  branches  of  the  Legislature, 
drawn  from  so  wide  an  area  and  elected  on  different 
plans,  would  work  harmoniously,  and  whether  general 
obedience  would  be  yielded  to  an  executive  President 
who  must  necessarily  belong  to  and  seem  to  represent 
one  particular  State  and  section  of  the  country.  Par- 
ties did  not  yet  exist,  for  there  was  as  yet  hardly  a  na- 
tion; but  within  a  decade  they  grew  to  maturity  and 
ferocity.  One  of  them  claimed  to  defend  local  self-gov- 
ernment, the  rights  of  the  people,  democratic  equality; 
the  other,  the  principle  of  national  unity  and  the  au- 
thority of  the  Federal  power.  One  sympathized  with 
France,  the  other  was  accused  of  leaning  to  an  English 
alliance.  They  were,  or  soon  came  to  be,  divided  not 
merely  on  burning  questions  of  foreign  policy  and  home 
policy,  but  also — and  this  was  an  issue  which  mixed  itself 
up  with  everything  else — as  to  the  extent  of  the  powers 
to  be  allowed  to  the  central  Government  and  its  rela- 
tions to  the  States — questions  which  the  curt  though  ap- 
parently clear  language  of  the  Constitution  had  by  no 
means  exhausted. 


HAMILTON  AND   TOCQUEVILLE  305 

Slavery  was  not  yet  a  burning  question — indeed  it 
existed  to  some  slight  extent  in  the  Middle  as  well  as  in 
the  Southern  States,  but  the  opposition  of  North  and 
South  was  already  visible.  The  Puritanism  of  New  Eng- 
land, its  industries  and  its  maritime  commerce,  gave  it 
different  sentiments  as  well  as  different  interests  from 
those  which  dominated  the  inhabitants  of  the  South,  a 
population  wholly  agricultural,  among  whom  the  influ- 
ence of  Jefferson  was  strong,  and  theories  of  extreme 
democracy  had  made  progress. 

There  was  great  diversity  of  opinion  and  feeling  on 
all  political  questions  in  the  America  of  those  days,  and 
the  utmost  freedom  in  expressing  it.  Over  against  the 
extreme  democrats  stood  an  illustrious  group  whose 
leader  was  currently  believed  to  be  a  monarchist  at 
heart,  and  who  never  concealed  his  contempt  for  the 
ignorance  and  folly  of  the  crowd.  Among  these  men, 
and  to  a  less  extent  among  the  Jeffersonians  also,  there 
existed  no  small  culture  and  literary  power,  and  though 
the  masses  were  all  orthodox  Christians  and,  except  in 
Maryland,  orthodox  Protestants,  there  was  no  lack  of 
scepticism  in  the  highest  circles.  One  may  speak  of 
highest  circles,  for  social  equality,  though  rapidly  ad- 
vancing and  gladly  welcomed,  was  as  yet  rather  a  doc- 
trine than  a  fact :  and  the  respect  for  every  kind  of  au- 
thority was  great.  There  were  neither  large  fortunes 
nor  abject  poverty :  but  the  labouring  class,  then  far  less 
organized  than  it  is  now,  deferred  to  the  middle  class, 
and  the  middle  class  to  its  intellectual  chiefs.  The  clergy 
were  powerful  in  New  England :  the  great  colonial  fami- 
lies enjoyed  high  consideration  in  New  York,  in  Penn- 
sylvania, and  above  all  in  Virginia,  whose  landowners 
seemed  to  reproduce  the  later  semi-feudal  society  of 
England.  Although  all  the  States  were  republics  of  a 
hue  already  democratic,  every  State  constitution  re- 
quired a  property  qualification  for  the  holding  of  office 
or  a  seat  in  the  Legislature,  and,  in  most  States,  a  simi- 
lar condition  was  imposed  even  on  the  exercise  of  the 

20 


306  HAMILTON  AND  TOCQUEVILLE 

suffrage.  Literary  men  (other  than  journalists)  were 
rare,  the  universities  few  and  old-fashioned  in  their 
methods,  science  scarcely  pursued,  philosophy  absorbed 
in  theology  and  theology  dryly  dogmatic.  But  public 
life  was  adorned  by  many  striking  figures.  Five  men  at 
least  of  that  generation,  Washington,  Franklin,  Hamil- 
ton, Jefferson  and  Marshall,  belong  to  the  history  of  the 
world;  and  a  second  rank  which  included  John  Adams, 
Madison,  Jay,  Patrick  Henry,  Gouverneur  Morris, 
Roger  Sherman,  James  Wilson,  Albert  Gallatin,  and 
several  other  gifted  figures  less  familiar  to  Europe,  must 
be  mentioned  with  respect. 

Everybody  professed  the  principles  of  the  Declaration 
of  Independence,  and  therefore  held  a  republican  form 
of  government  to  be  the  only  proper,  or  at  any  rate  the 
only  possible  form  for  the  central  authority  as  well  as  for 
the  States.  But  of  the  actual  working  of  republican  gov- 
ernments there  was  very  little  experience,  and  of  the 
working  of  democracies,  in  our  present  sense  of  the 
word,  there  was  really  none  at  all  beyond  that  of  the 
several  States  since  1776,  when  they  broke  loose  from 
the  British  Crown.  Englishmen  are  more  likely  than 
other  Europeans  to  forget  that  in  1788  there  was  in  the 
Old  World  only  one  free  and  no  democratic  nation1. 
In  Europe  there  now  remain  but  two  strong  monarchies, 
those  of  Russia  and  Prussia,  while  the  Western  hemi- 
sphere, scarcely  excepting  Dutch  and  British  Guiana 
and  Canada,  is  entirely  (at  least  in  name)  republican. 
But  the  world  of  1788  was  a  world  full  of  monarchs — 
despotic  monarchs — a  world  which  had  to  go  back  for 
its  notions  of  popular  government  to  the  common- 
wealths of  classical  antiquity.  Hence  the  speculations 
of  those  times  about  the  dangers,  and  merits,  and  ten- 
dencies characteristic  of  free  governments,  were  and 
must  needs  be  vague  and  fantastic,  because  the  mate- 
rials for  a  sound  induction  were  wanting.  Wise  men, 

1  The  Swiss  Confederation  was  hardly  yet  a  nation,  and  few  of  the  cantons 
were  governed  democratically. 


HAMILTON  AND   TOCQUEVILLE  307 

when  forced  to  speculate,  recurred  to  the  general  prin- 
ciples of  human  nature.  Ordinary  men  went  off  into  the 
air  and  talked  at  large,  painting  a  sovereign  people  as 
reckless,  violent,  capricious  on  the  one  hand,  or  virtu- 
ous and  pacific  on  the  other,  according  to  their  own  pre- 
dilections, whether  selfish  or  emotional,  for  authority 
or  for  liberty.  Though  no  one  has  yet  written  the  na- 
tural history  of  the  masses  as  rulers,  the  hundred  years 
since  1788  have  given  us  materials  for  such  a  natural 
history  surpassing  those  which  Hamilton  possessed  al- 
most as  much  as  the  materials  at  the  disposal  of  Darwin 
exceeded  those  of  Buffon.  Hence  in  examining  the 
views  of  the  Federalist  writers  l  and  their  antagonists, 
we  must  expect  sometimes  to  find  the  diagnosis  inexact 
and  the  prognosis  fanciful. 

II.  PREDICTIONS  OF   THE   OPPONENTS  AND   ADVOCATES 
OF  THE  CONSTITUTION. 

Those  who  opposed  the  Draft  Constitution  in  1787, 
a  party  both  numerous  and  influential  in  nearly  every 
State,  were  the  men  specially  democratic  and  also  spe- 
cially conservative.  They  disliked  all  strengthening  of 
government,  and  especially  the  erection  of  a  central  au- 
thority. They  were  satisfied  with  the  system  of  sove- 
reign and  practically  independent  States.  Hence  they 
predicted  the  following  as  the  consequences  to  be  ex- 
pected from  the  creation  of  an  effective  Federal  execu- 
tive and  legislature  2. 

i.  The  destruction  of  the  States  as  commonwealths. 
The  central  government,  it  was  said,  would  gradually 
encroach  upon  their  powers ;  would  use  the  federal  army 

1  Of  these  writers  Hamilton  must  be  deemed  the  leading  spirit,  not  merely 
because  he  wrote  by  far  the  larger  number  of  letters,  but  because  his  mind  was 
more  penetrating  and  commanding  than  either  Madison's  or  Jay's.  Madison  ren- 
dered admirable  service  in  the  Philadelphia  Convention  of  1787,  but  afterwards 
yielded  to  the  influence  of  Jefferson,  a  character  with  less  balance  but  more  force 
and  more  intellectual  fertility. 

a  I  take  no  account  of  those  objections  to  the  Constitution  which  may  be 
deemed  to  have  been  removed  by  the  first  eleven  amendments. 


308  HAMILTON  AND   TOCQUEVILLE 

to  overcome  their  resistance;  would  supplant  them  in 
the  respect  of  their  citizens ;  would  at  last  swallow  them 
up.  The  phrase  '  consolidation  of  the  Union,'  which 
had  been  used  by  the  Convention  of  1787  to  recommend 
its  draft,  was  laid  hold  of  as  a  term  of  reproach.  '  Con- 
solidation/ the  absorption  of  the  States  by  or  into  one 
centralized  government,  became  the  popular  cry,  and 
carried  away  the  unthinking. 

2.  The  creation  of  a  despot  in  the  person  of  the  Presi- 
dent.   His  legal  authority  would  be  so  large  as  not  only 
to  tempt  him,  but  to  enable  him,  to  extend  it  further, 
at  the  expense  of  the  liberties  both  of  States  and  of  peo- 
ple.   '  Monarchy,'  it  was  argued,  '  thrown  off  after  such 
efforts,  will  in  substance  return  with  this  copy  of  King 
George  III,  whose  command  of  the  federal  army,  power 
over  appointments,  and  opportunities  for  intriguing  with 
foreign  powers   on  the  one  hand  and  corrupting  the 
legislature  on  the  other1,  will  render  the  new  tyrant 
more  dangerous  than  the  old  one.     Or  if  he  be  more 
open  to  avarice  than  to  ambition,  he  will  be  the  tool  of 
foreign  sovereigns  and  the  means  whereby  they  will  con- 
trol or  enslave  America  2. 

3.  The  Senate  will  become  an  oligarchy.     Sitting  for 
six  years,  and  not  directly  elected  by  the  people,   it 
'  must  gradually  acquire  a  dangerous  pre-eminence  in 

i  See  The  Federalist,  No.  LIV. 

3  The  Federalist,  No.  LXVI,  p.  667.  '  Calculating  upon  the  aversion  of  the 
people  to  monarchy,  the  writers  against  the  Constitution  have  endeavoured  to 
enlist  all  their  jealousies  and  apprehensions  in  opposition  to  the  intended  Presi- 
dent of  the  United  States,  not  merely  as  the  embryo  but  as  the  full-grown 
progeny  of  that  detested  parent.  They  have  to  establish  the  pretended  affinity, 
not  scrupled  to  draw  resources  even  from  the  regions  of  fiction.  The  authority  of 
a  magistrate  in  few  instances  greater,  in  some  instances  less,  than  those  of  a  Gov- 
ernor of  New  York,  have  been  magnified  into  more  than  royal  prerogatives.  He 
has  been  decorated  with  attributes  superior  in  dignity  and  splendour  to  those  of  a 
King  of  Great  Britain.  He  has  been  shown  to  us  with  the  diadem  sparkling  on 
his  brow  and  the  imperial  purple  flowing  in  his  train.  He  has  been  seated  on  a 
throne  surrounded  with  minions  and  mistresses,  giving  audience  to  the  envoys 
of  foreign  potentates  in  all  the  supercilious  pomp  of  majesty.  The  images  of 
Asiatic  despotism  and  voluptuousness  have  scarcely  been  wanting  to  crown 
the  exaggerated  scene.  We  have  been  taught  to  tremble  at  the  terrific  visages 
of  murdering  janizaries,  and  to  blush  at  the  unveiled  mysteries  of  a  future 
seraglio.' 

These  were  the  days  when  Johnson  and  Gibbon  ruled  English  style. 


HAMILTON  AND  TOCQUEVILLE  309 

the  government,  and  finally  transform  it  into  a  tyranni- 
cal aristocracy  V 

4.  The  House  of  Representatives  will  also,  like  every 
other  legislature,  aim  at  supremacy.    Elected  only  once 
in  two  years,  it  will  forget  its  duty  to  the  people.     It 
will  consist  of  '  the  wealthy  and  well-born/  and  will 
try  to  secure  the  election  of  such  persons  only  as  its 
members  2. 

5.  The  larger  States  will  use  the  greater  weight  in  the 
government  which  the  Federal  constitution  gives  them 
to  overbear  the  smaller  States. 

6.  The  existence  of  a  strong  central  government  is 
not  only  likely,  by  multiplying  the  occasions  of  diplo- 
matic intercourse  with  foreign  powers,  to  give  openings 
for  intrigues  by  them  dangerous  to  American  independ- 
ence, but  likely  also  to  provoke  foreign  wars,  in  which 
the  republic  will  perish  if  defeated,  or  if  victorious  main- 
tain herself  only  by  vast  expenditure,  with  the  additional 
evil  of  having  created  in  an  army  a  standing  menace  to 
freedom. 

That  some  of  these  anticipations  were  inconsistent 
with  others  of  them  was  no  reason  why  even  the  same 
persons  should  not  resort  to  both  in  argument.  Any 
one  who  wishes  to  add  to  the  number,  for  I  have  quoted 
but  a  few,  being  those  which  turn  upon  the  main  out- 
lines of  the  Philadelphia  draft,  may  do  so  by  referring 
to  the  record,  known  at  Elliott's  Debates,  of  the  discus- 
sions in  the  several  State  Conventions  which  deliberated 
on  the  new  Constitution.  It  is  an  eminently  instructive 
record. 

I  pass  from  the  opponents  of  the  Constitution  to  its 
advocates.  Hamilton  and  its  friends  sought  in  it  a 
remedy  against  what  they  deemed  the  characteristic 
dangers  of  popular  government.  It  is  by  dwelling  on 
these  dangers  that  they  recommend  it.  We  can  per- 
ceive, however,  that,  while  lauding  its  remedial  power, 

1  The  Federalist,  No.  LXII. 

a  The  Federalist,  Nos.  LVI  and  LIX. 


310  HAMILTON  AND  TOCQUEVILLE 

they  are  aware  how  deep-seated  such  dangers  are,  and 
how  likely  to  recur  even  after  the  adoption  of  the  Con- 
stitution. The  language  which  Hamilton  held  in  private 
proves  that  he  desired  a  more  centralized  government, 
which  would  have  approached  nearer  to  that  British 
Constitution  which  he  regarded  as  being,  with  all  its 
defects  (and  partly  owing  to  its  corruptions!)  the  best 
model  for  free  nations1.  He  feared  anarchy,  and 
thought  that  only  a  strong  national  government  could 
avert  it.  And  in  a  remarkable  letter  written  in  Febru- 
ary, 1802,  under  the  influence  of  disappointment  with  the 
course  events  were  then  taking,  he  describes,  in  his 
somewhat  sweeping  way,  the  Constitution  he  was  '  still 
labouring  to  prop  '  as  a  '  frail  and  worthless  fabric/ 

We  may  therefore  legitimately  treat  his  list  of  evils 
to  be  provided  against  by  the  new  Federal  Government 
as  indicating  the  permanently  mischievous  tendencies 
which  he  foresaw.  Some  of  them,  he  is  obliged  to  admit, 
cannot  be  wholly  averted  by  any  constitutional  devices, 
but  only  by  the  watchful  intelligence  and  educated  virtue 
of  the  people. 

The  evils  chiefly  feared  are  the  following: — 

1.  The  spirit  and  power  of  faction,  which  is  so  clearly 
the  natural  and  necessary  offspring  of  tendencies  always 
present  in  mankind,  that  wherever  liberty  exists  it  must 
be  looked  for  2. 

Its  causes  are  irremovable  ;  all  you  can  do  is  to  control 
its  effects,  and  the  best  prospect  of  overcoming  them 
is  afforded  by  the  representative  system  and  the  wide 
area  of  the  United  States  with  the  diversities  among  its 
population. 

2.  Sudden  impulses,  carrying  the  people  away  and  in- 
ducing hasty  and  violent  measures  3. 

3.  Instability  in  foreign  policy,  due  to  changes  in  the 

1  Though  he,  like  other  observers  of  that  time,  had  not  realized,  and  might 
not  have  relished,  the  supremacy,  now  become  omnipotence,  which  the  House  of 
Commons  had  already  won. 

*  The  Federalist,  No.  X  (written  by  Madison),  and  in  other  letters. 

3  The  Federalist,  No.  LXII. 


HAMILTON  AND   TOCQVEVILLE  311 

executive  and  in  public  sentiment,  and  rendering  neces- 
sary the  participation  of  a  comparatively  small  council 
or  Senate  in  the  management  of  this  department. 

4.  Ill-considered  legislation.     '  Facility  and  excess  of 
law-making1/  and  'inconstancy  and  mutability  in  the 
laws  V  form  the  '  greatest  blemish  in  the  character  and 
genius  of  our  governments.* 

5.  The  Legislature  is  usually  the  strongest  power  in 
free  governments.     It  will  seek,  as  the  example  of  the 
English  Parliament  shows,  to  encroach  upon  the  other 
departments;  and  this  is  especially  to  be  feared  from 
the  House  of  Representatives  as  holding  the  power  of 
the  purse  3. 

6.  The  States,  and  especially  the  larger  States,  may 
overbear  the  Federal  Government.     They  have  closer 
and  more  constant  relations  with  the  citizen,  because 
they  make  and  administer  the  ordinary  laws  he  lives 
under.     His  allegiance  has  hitherto  belonged  to  them, 
and  may  not  be  readily  given  to  the  central  authority. 
In  a  struggle,  should  a  struggle  come,  State  power  is 
likely  to  prevail  against  Federal  power. 

7.  There  is  in  republics  a  danger  that  the  majority 
may  oppress  the  minority.    Already  conspicuous  in  some 
of  the  State  governments,  as  for  instance  in   Rhode 
Island,  this  danger  may  be  diminished  by  the  applica- 
tion of  the  federal  system  to  the  great  area  of  the  Union, 
where  '  society  will  be  broken  into  so  many  parts,  in- 
terests, and  classes  of  citizens,  that  the  rights  of  indi- 
viduals or  of  the  minority  will  be  in  little  danger  from 
interested  combinations  of  the  majority  V 

8.  Another  source  of  trouble  is  disclosed  by  the  rash 

i  The  Federalist,  No.  LXI. 

«  The  Federalist,  No.  LXXII. 

3  l  The  Legislative  Department  is  everywhere  («.  e.  in  all  the  States)  extending 
the  sphere  of  its  activity  and  drawing  all  power  into  its  impetuous  vortex.  .  .  . 
It  is  against  the  enterprising  ambition  of  this  department  that  the  People  ought  to 
indulge  all  their  jealousy  and  exhaust  all  their  precautions'  (The  Federalist,  No. 
XLVII).  The  people  have  now  begun  to  resort  to  precautions  ;  but  it  is  not  the 
ambition  of  State  legislatures  that  is  feared,  it  is  their  subserviency  to  private 
interests  or  the  party  machine. 

*  The  Federalist,  No.  L. 


312  HAMILTON  AND  TOCQUEVILLE 

and  foolish  experiments  which  some  States  have  tried 
in  passing  laws  which  threaten  the  validity  of  contracts 
and  the  security  of  property.  There  are  also  signs  of 
weakness  in  the  difficulty  which  State  Governments  have 
found  in  raising  revenue  by  direct  taxation1.  Citizens 
whose  poverty  does  not  excuse  their  want  of  public 
spirit  refuse  to  pay;  and  the  administration  fears  to 
coerce  them. 

Not  less  instructive  than  the  fears  of  The  Federalist 
writers  are  their  hopes.  Some  of  the  perils  which  have 
since  been  disclosed  are  not  divined.  Some  institutions 
which  have  conspicuously  failed  are  relied  on  as  full  of 
promise. 

The  method  of  choosing  the  President  is  recom- 
mended with  a  confidence  the  more  remarkable  because 
it  was  the  point  on  which  the  Convention  had  been  most 
divided  and  had  been  latest  in  reaching  an  agreement. 

'  If  the  manner  of  the  appointment  of  the  Chief  Magi- 
strate be  not  perfect,  it  is  at  least  excellent.  It  unites 
in  an  eminent  degree  all  the  advantages  the  union  of 
which  was  to  be  wished  for.  .  .  .  The  process  of  elec- 
tion affords  a  moral  certainty  that  the  office  of  President 
will  never  fall  to  the  lot  of  any  one  who  is  not  in  an 
eminent  degree  endowed  with  the  requisite  qualifica- 
tions. Talents  for  low  intrigue,  and  the  little  arts  of 
popularity,  may  alone  suffice  to  elevate  a  man  to  the 
first  honours  in  a  single  State,  but  it  will  require  other 
talents  and  a  different  kind  of  merit  to  establish  him  in 
the  confidence  and  esteem  of  the  whole  Union,  or  of  so 
considerable  a  portion  of  it  as  would  be  necessary  to 
make  him  a  successful  candidate  for  the  distinguished 
office  of  President  of  the  United  States.  It  will  not  be 
too  strong  to  say  that  there  will  be  a  constant  probability 
of  seeing  the  station  filled  by  characters  pre-eminent  for 
ability  and  virtue  2.' 

i  The  Federalist,  No.  XII. 

8  The  Federalist,  No.  LXVII.  In  A.  D.  1800,  twelve  years  after  Hamilton 
wrote  this  passage,  the  contest  for  the  Presidency  lay  between  Jefferson  and 
Aaron  Burr,  and  Hamilton  was  compelled  by  his  sense  of  Burr's  demerits  to 


HAMILTON  AND   TOCQUEVILLE  313 

It  is  assumed  that  America  will  continue  an  agri- 
cultural and  (to  a  less  extent)  a  commercial  country, 
but  that  she  will  not  develop  manufactures ;  and  also 
that  the  fortunes  of  her  citizens  will  continue  to  be 
small l.  No  serious  apprehensions  regarding  the  influ- 
ence of  wealth  in  elections  or  in  politics  generally  are 
expressed. 

The  contingency  of  a  division  of  the  States  into  two 
antagonistic  groups  is  not  contemplated.  When  the 
possibility  of  State  combinations  is  touched  on,  it  is 
chiefly  with  reference  to  the  action  of  small  and  of  large 
States  respectively.  In  particular  no  hint  is  dropped  as 
to  the  likelihood  of  the  institution  of  slavery  becoming 
a  bond  to  unite  the  Southern  States  and  a  cause  of  quar- 
rel between  them  and  the  Northern.  Yet  slavery  had 
given  trouble  in  the  Philadelphia  Convention,  and  an 
opposition  of  North  and  South  grounded  upon  it  soon 
emerged. 

Although  the  mischiefs  of  faction  are  dwelt  on,  noth- 
ing indicates  that  its  embodiment  in  highly  developed 
party  systems,  whose  organizations  might  overshadow 
the  legal  government,  had  occurred  to  any  one's  mind. 
Still  less,  of  course,  is  there  any  anticipation  of  the  influ- 
ence to  be  exerted  on  politics  by  the  distribution  of 
offices.  Not  till  long  afterwards  were  they  treated  as 
'  spoils  of  war.' 

urge  his  party  to  vote  (when  the  choice  came  before  the  House  of  Representa- 
tives) for  Jefferson,  his  own  bitter  enemy.  What  he  thought  of  Burr,  who,  but 
for  his  intervention,  would  certainly  have  obtained  the  chief  magistracy  of  the 
nation  (and  by  whose  hand  he  ultimately  died),  may  be  inferred  from  the  fact  that 
he  preferred  as  President  the  man  of  whom  he  thus  writes :  '  I  admit  that  his 
(Jefferson's)  politics  are  tinctured  with  fanaticism ;  that  he  is  too  much  in  earnest 
in  his  democracy  ;  that  he  has  been  a  mischievous  enemy  to  the  principal  meas- 
ures of  our  past  administration  ;  that  he  is  crafty  and  persevering  in  his  objects ; 
that  he  is  not  scrupulous  about  the  means  of  success,  nor  very  mindful  of  truth  ; 
and  that  he  is  a  contemptible  hypocrite.  But,  &c.'  (Letter  to  James  A.  Bayard, 
Jan.  16,  1801.) 

After  this  it  is  superfluous,  as  it  would  be  invidious,  to  dwell  on  the  deficiencies 
of  some  recent  Presidents  or  Presidential  candidates. 

1  l  The  private  fortunes  of  the  President  and  Senators,  as  they  must  all  be 
American  citizens,  cannot  possibly  be  sources  of  danger'  (The  Federalist^  No. 
LIV). 


314  HAMILTON  AND   TOCQUEVILLE 

III.     CRITICISM  OF  THE  PREDICTIONS  OF  1788. 

Let  us  now  see  which  of  these  views  and  forecasts 
have  been  verified  by  the  event. 

Of  those  put  forth  by  the  opponents  of  the  Constitu- 
tion not  one  has  proved  true.  The  States  are  still 
strong,  the  President  is  not  a  despot,  though  for  a  time 
during  the  Civil  War  he  came  near  being  one,  nor  has 
he  ever  fallen  under  the  influence  of  any  European 
power.  The  House  does  not  consist  of  the  '  wealthy  and 
well-born.'  The  larger  States  do  not  combine  against 
nor  press  hardly  on  the  smaller.  No  great  country  has 
had  so  few  wars  or  indeed  so  few  foreign  complications 
of  any  kind1.  The  Senate  is  still  often  called  'an  oli- 
garchy,' but  this  means  only  that  it  consists  of  compara- 
tively few  persons,  most  of  them  wealthy,  and  that  it  has 
a  strong  corporate  feeling  in  favour  of  the  personal 
interests  of  each  of  its  members.  It  is  really  as  depend- 
ent on  public  opinion  as  the  House,  perhaps  even  more 
afraid  of  public  opinion,  and  as  directly  the  creature 
of  party  machinery,  though  less  directly  of  popular 
election. 

One  is  surprised  to  find  that  of  the  many  arrows  of 
accusation  levelled  at  the  Constitution,  all  should  have 
flown  wide  of  the  mark. 

The.  deeper  insight  and  more  exact  thinking  of  Hamil- 
ton and  Madison  fastened  upon  most  of  the  real  and 
permanent  weaknesses  in  popular  government.  Yet 
even  they  could  not  foresee  the  particular  forms  which 
those  weaknesses  would  assume  in  the  new  nation.  To 
examine  in  detail  the  eight  points  specified  above  would 
involve  an  examination  of  American  history  for  a  cen- 
tury. I  shall  therefore  simply  indicate  in  a  word  or  two 
the  extent  to  which,  in  each  case,  the  alarms  or  predic- 
tions of  The  Federalist  may  be  deemed  well  grounded. 

1  Three  wars  since  1789 :  that  of  1812,  that  of  1845,  and  that  of  1898.  Every  one 
of  these  might  no  doubt  have  been  avoided  with  honour,  and  two  of  them  savoured 
of  aggression,  but  the  same  may  be  said  of  nearly  all  the  wars  of  European 
States. 


HAMILTON  AND  TOCQUEVILLE  315 

1.  The  spirit  of  faction  has  certainly,  as  Madison  ex- 
pected, proved  less  intense  over  the  large  area  of  the 
Union  than  it  did  in  the  Greek  republics  of  antiquity  or 
in  the  several  States  from  1776  to  1789.    On  the  other 
hand,  the  bonds  of  sympathy  created  by  the  Federal  sys- 
tem have  at  times  enabled  one  State  to  infect  another 
with  its  own  vehemence.    But  for  South  Carolina,  there 
would  have  been  no  secession  in  1861.    Since  1880  the 
'  demon  of  faction  '  has  been  less  powerful  in  the  parties 
than  at  any  previous  date  since  the  so-called  '  Era  of 
Good  Feeling '  in  1820. 

2.  Sudden  popular  impulses  there  have  been.     But 
finding  a  ready  and  constitutional  expression  in  elec- 
tions, they  do  not  induce  a  resort  to  arms,  while  the 
elaborate  system  of  checks  on  legislation  seldom  allows 
them  to  result  in  the  passing  of  dangerous  measures  by 
Congress.    In  some  States  the  risk  of  bad  laws  is  serious, 
but  it  is  lessened  by  the  provisions  of  the  Federal  Con- 
stitution as  well  as  by  the  veto  power  of  the  State  Gov- 
ernor and  the  restrictions  of  recent  State  Constitutions. 

3.  The  early  history  of  the  Union  furnishes  illustra- 
tions of  feebleness  and  inconstancy  in  foreign  policy, 
yet  not  greater  than  those  which  mark  most  monarchies. 
Royal  caprice,  or  the  influence  of  successive  favourites, 
has  proved  more  pernicious  in  absolute  kingdoms  or 
principalities  than  popular  fickleness  in  republics.    That 
the  foreign  policy  of  the  United  States  was  singularly 
consistent  down  till  1898,  when  it  suddenly  took  an  en- 
tirely '  new  departure/  was  not  due  to  the  Senate.     It 
must  be  credited  partly  to  the  good  sense  of  the  people, 
partly  to  the  fact  that  the  position  and  interests  of  the 
nation  prescribed  certain  broad  and  simple  lines. 

4.  Whatever  may  be  thought  of  its  handling  of  private 
bills,  Congress  was  seldom  prone  to  haste  or  reckless 
expenditure  in  legislation  on  public  matters,   until  it 
passed  the  amazing  Pensions  Act  of  1890.     Nor  has  it 
given  the  country  too  many  laws.     It  has  been  on  the 
whole  more  blameable  for  what  it  neglects  or  postpones 


316  HAMILTON  AND  TOCQUEVILLE 

than  for  what  it  enacts.    The  censure  is  more  true  of  the 
States,  especially  the  newer  Western  States. 

5.  The  House  of  Representatives  has  doubtless  sought 
to  extend  its   sway  at  the   expense   of  other   depart- 
ments.   Whether  it  has  succeeded  is  a  question  on  which 
competent  observers  in  America  itself  differ;  but  the 
fact  of  their  differing  proves  that  the  encroachments 
have  not  been  considerable.    Whenever  the  President  is 
weak  or  unpopular,  Congress  seems  to  be  gaining  on 
the   Executive    Chief.     When   the   latter   is    or    seems 
strong,  he  can  keep  the  Legislature  at  bay. 

6.  In  the  struggle  which  never  quite  ceases,  though 
it  is  often  scarcely  noticed,  between  the  States  and  the 
Federal  Government,  the  States  have  on  the  whole  lost 
ground.     Nor  are  the  larger  States  practically  more 
formidable  than  the  small  ones.     The  largest  is  small 
compared  with  the  immense  Union.     No  State  would 
now  venture  to  brave  the  Federal  Judiciary  as  Georgia 
did,  and  for  a  time  did  successfully  (1832),  in  one  of  the 
painful  cases  regarding  the  Cherokee  Indians. 

7.  The  so-called  Tyranny  of  the  Majority,  a  subject 
too  large  to  be  fully  examined  here1,  has  not  hitherto 
proved  a  serious  evil  in  America.    This,  however,  is  due 
rather  to  the  character  and  habits  of  the  people  and  their 
institutions  generally  than  to  the  mere  extent  and  popu- 
lation of  the  Union,  on  which  the  Federalist  writers  relied. 

8.  There  has  been  some  unwise  Congressional  legis- 
lation, especially  in  currency  matters,  and,  of  course, 
much  more  of  unwise  State  legislation.     But  property 
is  secure,  and  the  sense  of  civic  duty  seems,  on  the  whole, 
to  be  improving. 

It  will  appear  from  this  examination,  and  from  the 
fact  (noted  a  few  pages  back)  that  some  remarkable  de- 
velopments which  political  life  has  taken  never  crossed 
the  minds  of  the  authors  of  The  Federalist,  that  these 
wisest  men  of  their  time  did  not  foresee  what  strike  us 

1  The  subject  is  discussed  in  the  author's  American  Commonwealth,  chaps. 
Ixxxiv  and  Ixxxv. 


HAMILTON  AND  TOCQUEVILLE  317 

to-day  as  the  specially  characteristic  virtues  and  faults  of 
American  democracy.  Neither  the  spoils  system  nor 
the  system  of  party  nominations  by  wire-pullers  crossed 
their  minds.  They  did  not  foresee  the  inordinate  multi- 
plication of  elections,  nor  the  evils  of  confining  eligibility 
for  a  seat  in  the  legislature  to  a  person  resident  in  the 
electing  district,  nor  the  disposition  to  '  play  down  '  to 
the  masses  by  seductive  proposals.  That  the  power 
which  money  might  come  to  exert  lay  quite  out  of  their 
view  is  not  to  be  wondered  at,  for  no  large  fortunes  then 
existed.  No  student  of  history  will  deem  that  these 
omissions  detract  from  their  greatness,  for  history 
teaches  nothing  more  plainly  than  the  vanity  of  predic- 
tions in  the  realm  of  what  we  call  the  moral  and  political 
sciences,  in  religion,  in  ethics,  in  sociology,  in  govern- 
ment and  politics.  Deep  thinkers  help  us  when  they  un- 
fold those  permanent  truths  of  human  nature  which 
come  everywhere  into  play.  Historians  help  us  when, 
by  interpreting  the  past,  they  demonstrate  what  are  the 
tendencies  that  have  gone  to  create  the  present.  Ob- 
servers keen  enough  to  interpret  the  underlying  pheno- 
mena of  their  own  time  may  help  us  by  showing  which 
of  the  tendencies  now  at  work  are  likely  to  become  rul- 
ing factors  in  the  near  future.  But  beyond  the  near 
future — that  is  to  say,  beyond  the  lifetime  of  the  genera- 
tion which  already  holds  power — no  true  philosopher 
will  venture.  He  may  indulge  his  fancy  in  picturing  the 
details  of  the  remoter  landscape ;  but  he  knows  that  it 
is  a  region  fit  for  fancy,  not  for  science.  In  the  works 
of  great  thinkers  there  are  to  be  found  some  happy 
guesses  about  times  to  come ;  but  these  are  few  indeed, 
compared  with  the  prophecies  whose  worthlessness  was 
so  soon  revealed  that  men  forgot  they  had  ever  been 
made,  or  the  dreams  which,  like  those  of  Dante,  idealized 
an  impossible  future  from  an  irrevocable  past. 

As  regards  the  views  of  Hamilton  and  Madison,  who, 
be  it  remembered,  do  not  present  themselves  as  pro- 
phets, but  as  the  censors  of  present  evils  which  they 


818  HAMILTON  AND  TOCQUEVILLE 

are  seeking  to  remedy,  it  may  be  added  that  the  Consti- 
tution which  they  framed  and  carried  checked  some  of 
these  very  evils  (e.g.  the  unjust  law-making  and  reckless 
currency  experiments  of  the  State  Legislatures) ;  and 
that  it  was  obviously  impossible  till  the  Federal  govern- 
ment had  begun  to  work  to  say  how  the  existing  forces 
could  adapt  themselves  to  it.  Hamilton  remarks  in  one 
of  his  letters  that  he  holds  with  Montesquieu  that  a 
nation's  form  of  government  ought  to  be  fitted  to  it  as 
a  suit  of  clothes  is  fitted  to  its  wearer1.  He  would 
doubtless  have  added  that  one  cannot  make  sure  of  the 
fit  until  the  suit  has  been  tried  on. 

We  must  remember,  moreover,  that  the  causes  which 
have  affected  the  political  growth  of  America  are  largely 
causes  which  were  in  1788  altogether  beyond  human 
ken.  The  cotton  gin,  Napoleon's  willingness  to  sell 
Louisiana,  steam  communications  by  water  and  land, 
Irish  and  German  immigration,  have  swayed  the  course 
of  that  history;  but  even  the  first  of  these  factors  had 
not  risen  over  the  horizon  in  that  year,  and  the  last  did 
not  become  potent  till  halfway  through  the  nineteenth 
century  2. 

What  the  sages  of  the  Convention  do  show  us  are 
certain  tendencies  they  discern  in  their  contemporaries, 
viz. : — 

Recklessness  and  unwisdom  in  the  masses,  producing 
bad  laws. 

Unwillingness  to  submit  to  or  support  a  strong 
government. 

Abuse  by  the  majority  of  its  legal  power  over  the 
minority. 

Indifference  to  national  as  compared  with  local  and 
sectional  interests,  and  consequent  preference  of  State 
loyalty  to  national  loyalty. 

1  '  I  hold  with  Montesquieu  that  a  government  must  be  fitted  to  a  nation  as  much 
as  a  coat  to  the  individual ;  and  consequently  that  what  may  be  good  at  Philadel- 
phia may  be  bad  at  Paris  and  ridiculous  at  Petersburgh.'  To  Lafayette,  Jan.  6, 1799. 

1  The  first  cargo  of  cotton  was  sent  from  America  to  Europe  in  1791,  and  the 
cotton  gin  invented  in  1793. 


HAMILTON  AND  TOCQUEVILLE  319 

That  each  of  these  tendencies  then  existed,  and  might 
have  been  expected  to  work  for  evil,  admits  of  no  doubt. 
But  if  we  ask  American  history  what  it  has  to  say  about 
their  subsequent  course,  the  answer  will  be  that  the 
second  and  third  tendencies  have  declined,  and  do  not 
at  present  menace  the  public  welfare,  while  the  first, 
though  never  absent  and  always  liable  to  marked  recru- 
descence, as  the  annals  of  the  several  States  prove,  has 
done  comparatively  little  harm  in  the  sphere  of  national 
government.  As  to  the  fourth,  which  Hamilton  seems 
to  have  chiefly  feared,  it  ultimately  took  the  form,  not 
of  a  general  centrifugal  force,  impelling  each  State  to  fly 
off  from  the  system,  but  of  a  scheme  for  the  separation 
of  the  Southern  or  slave-holding  States  into  a  separate 
Confederacy,  and  in  this  form  it  received,  in  1865,  a 
crushing  and  apparently  final  defeat1. 


IV.    TOCQUEVILLE   AND    HIS    BOOK. 

Fifty-one  years  after  the  recognition  of  the  indepen- 
dence of  the  United  States,  sixty-seven  years  before  the 
beginning  of  the  twentieth  century,  Alexis  de  Tocque- 
ville  published  his  Democracy  in  America,  one  of  the  few 
treatises  on  the  philosophy  of  politics  which  has  risen  to 
the  rank  of  a  classic.  His  book,  therefore,  stands  rather 
further  than  halfway  back  between  our  own  days  and 
those  first  days  of  the  Republic  which  we  know  from  the 
writings  of  the  Fathers,  of  Washington,  Jefferson, 
Adams,  Hamilton,  Madison.  It  offers  a  means  of  mea- 
suring the  changes  that  had  passed  on  the  country  dur- 
ing the  half-century  from  the  birth  of  the  Union  to  the 
visit  of  its  most  famous  European  critic,  and  again  from 
the  days  of  that  critic  to  our  own. 

It  is  a  classic,  and  because  it  is  a  classic,  one  may 
venture  to  canvas  it  freely  without  the  fear  of  seeming 

1  When  we  come  to  Tocqueville,  we  shall  find  him  touching  but  lightly  on  the 
two  first  of  the  above  tendencies  (partly,  perhaps,  because  he  attends  too  little  to 
the  State  governments),  but  emphasizing  the  third  and  fearing  from  the  fourth 
the  dissolution  of  the  Union. 


320  HAMILTON  AND  TOCQUEVILLE 

to  detract  from  the  fame  of  its  author.  The  more  one 
reads  Tocqueville,  the  more  admiration  does  one  feel  for 
the  acuteness  of  his  observation,  for  the  delicacy  of  his 
analysis,  for  the  elegant  precision  of  his  reasonings, 
for  the  limpid  purity  of  his  style ;  above  all,  for  his  love 
of  truth  and  the  elevation  of  his  character.  He  is  not 
only  urbane,  but  judicial ;  not  only  noble,  but  edifying. 
There  is  perhaps  no  book  of  the  generation  to  which  he 
belonged  which  contains  more  solid  wisdom  in  a  more 
attractive  dress. 

We  have  here,  however,  to  regard  the  treatise,  not 
as  a  model  of  art  and  a  storehouse  of  ethical  maxims, 
but  as  a  picture  and  criticism  of  the  government  and 
people  of  the  United  States.  And  before  using  it  as  evi- 
dence of  their  condition  seventy  years  ago,  we  must  ap- 
praise the  reliance  to  be  placed  upon  it1. 

First  let  it  be  observed  that  not  only  are  Tocqueville's 
descriptions  of  democracy  as  displayed  in  America  no 
longer  true  in  many  points,  but  that  in  certain  points 
they  never  were  true.  That  is  to  say,  some  were  true  of 
America,  but  not  of  democracy  in  general,  while  others 
were  true  of  democracy  in  general,  but  not  true  of  Amer- 
ica. It  is  worth  while  to  attempt  to  indicate  the  causes 
of  such  errors  as  may  be  discovered  in  his  picture,  be- 
cause they  are  errors  which  every  one  who  approaches 
a  similar  task  has  to  guard  against.  Tocqueville  is  not 
widely  read  in  the  United  States,  where  the  scientific, 
historical,  and  philosophical  study  of  the  institutions  of 
the  country,  apart  from  the  legal  study  of  the  Constitu- 
tion, is  of  comparatively  recent  growth.  He  is  less  read 
than  formerly  in  England  and  even  in  France.  But  his 
views  of  the  American  government  and  people  have  so 
passed  into  the  texture  of  our  thoughts  that  we  cannot 
shake  off  his  influence,  and,  in  order  to  profit  by  it,  are 
bound  to  submit  his  conclusions  and  predictions  to  a 
searching  though  always  respectful  examination. 

1  Some  interesting  remarks  upon  Tocqueville's  tour  in  America  and  upon  his 
views  of  American  affairs  may  be  found  in  President  Oilman's  Introduction  to  a 
recent  edition  (1898)  of  the  English  translation  of  Tocqueville's  book. 


HAMILTON  AND   TOCQUEVILLE  321 

The  defects  of  the  book  are  due  to  three  causes.  He 
had  a  strong  and  penetrating  intellect,  but  it  moved  by 
preference  in  the  a  priori  or  deductive  path,  and  his 
power  of  observation,  quick  and  active  as  it  was,  did 
not  lead  but  followed  the  march  of  his  reasonings.  It 
will  be  found,  when  his  method  is  closely  scrutinized, 
that  the  facts  he  cites  are  rather  the  illustrations  than 
the  sources  of  his  conclusions.  He  had  studied  America 
carefully  and  thoroughly.  But  he  wanted  the  necessary 
preparation  for  that  study.  His  knowledge  of  England, 
while  remarkable  in  a  native  of  continental  Europe,  was 
not  sufficient  to  show  him  how  much  in  American  insti- 
tutions is  really  English,  and  explainable  only  from  Eng- 
lish sources. 

He  wrote  about  America,  and  meant  to  describe  it 
fully  and  faithfully.  But  his  heart  was  in  France,  and 
the  thought  of  France,  never  absent  from  him,  uncon- 
sciously coloured  every  picture  he  drew.  It  made  him 
think  things  abnormal  which  are  merely  un-French;  it 
made  him  attach  undue  importance  to  phenomena  which 
seemed  to  explain  French  events  or  supply  a  warning 
against  French  dangers. 

He  reveals  his  method  in  the  introduction  to  his  book. 
He  draws  a  fancy  sketch  of  a  democratic  people,  based 
on  a  few  general  principles,  passes  to  the  condition  of 
France,  and  then  proceeds  to  tell  us  that  in  America  he 
went  to  seek  the  type  of  democracy — democracy  pure 
and  simple — in  its  normal  shape. 

'  J'avoue  que  dans  1'Amerique,  j'ai  vu  plus  que  1'Amer- 
ique;  j'y  ai  cherche  une  image  de  la  democratic  elle- 
meme,  de  ses  penchants,  de  son  caractere,  de  ses  pre- 
juges,  de  ses  passions.' 

Like  Plato  in  the  Republic,  he  begins  by  imagining 
that  there  exists  somewhere  a  type  or  pattern  of  demo- 
cracy, and  as  the  American  Republic  comes  nearest  to 
this  pattern,  he  selects  it  for  examination.  He  is  aware, 
of  course,  that  there  must  be  in  every  country  and  peo- 
ple many  features  special  to  the  country  which  reappear 

21 


333  HAMILTON  AND  TOCQUEVILLE 

in  its  government,  and  repeatedly  observes  that  this  or 
that  is  peculiar  to  America,  and  must  not  be  taken  as 
necessarily  or  generally  true  of  other  democracies.  But 
in  practice  he  underrates  the  purely  local  and  special  fea- 
tures of  America,  and  often,  forgetting  his  own  scientific 
cautions,  treats  it  as  a  norm  for  democracy  in  general. 
Nor  does  he,  after  finding  his  norm,  proceed  simply  to 
examine  the  facts  and  draw  inferences  from  them.  In 
many  chapters  he  begins  by  laying  down  one  or  two 
large  principles,  he  develops  conclusions  from  them,  and 
then  he  points  out  that  the  phenomena  of  America  con- 
form to  these  conclusions.  Instead  of  drawing  the  cha- 
racter of  democracy  from  the  aspects  it  presents  in 
America,  he  arrives  at  its  character  by  a  sort  of  intuitive 
method,  and  uses  those  aspects  only  to  point  and  enforce 
propositions  he  has  already  reached.  It  is  not  demo- 
cracy in  America  he  describes,  but  his  own  theoretic 
view  of  democracy  illustrated  from  America.  He  is  ad- 
mirably honest,  never  concealing  or  consciously  evading 
a  fact  which  he  perceives  to  tell  against  his  theories. 
But  being  already  prepossessed  by  certain  abstract 
principles,  facts  do  not  fall  on  his  mind  like  seeds  on 
virgin  soil.  He  is  struck  by  those  which  accord  with,  he 
is  apt  to  ignore  those  which  diverge  from,  his  preconcep- 
tions. Like  all  deductive  reasoners,  he  is  peculiarly  ex- 
posed to  the  danger  of  pressing  a  principle  too  far,  of 
seeking  to  explain  a  phenomenon  by  one  principle  only 
when  it  is  perhaps  the  result  of  an  accidental  concur- 
rence of  several  minor  causes.  The  scholasticism  we  ob- 
serve in  him  is  due  partly  to  this  deductive  habit,  partly 
to  his  want  of  familiarity  with  the  actualities  of  politics. 
An  instance  of  it  appears  in  his  tendency  to  overestimate 
the  value  of  constitutional  powers  and  devices,  and  to 
forget  how  often  they  are  modified,  almost  reversed,  in 
practice  by  the  habits  of  those  who  use  them.  Though 
no  one  has  more  judiciously  warned  us  to  look  to  the 
actual  working  of  institutions  and  the  ideas  of  the  men 
who  work  them  rather  than  to  their  letter,  he  has  him- 


HAMILTON  AND   TOCQUEVILLE  323 

self  failed  to  observe  that  the  American  Constitution 
tends  to  vary  in  working  from  its  legal  theory,  and  the 
name  Legislature  has  prevented  him,  like  so  many  other 
foreign  observers,  from  seeing  in  the  English  Parlia- 
ment an  executive  as  well  as  a  law-making  body. 

In  saying  that  he  did  not  know  England,  I  fully  admit 
that  his  knowledge  of  that  country  and  its  free  govern- 
ment was  far  beyond  the  knowledge  of  most  cultivated 
foreigners.  He  had  studied  its  history  and  had  gathered 
from  his  reading  the  sentiments  of  its  aristocracy  and 
of  its  literary  men.  But  he  did  not  know  the  ideas  and 
habits  of  the  English  middle  class,  with  whom  the  Ameri- 
cans of  his  time  might  better  have  been  compared,  and 
he  was  not  familiar — as  how  could  a  stranger  be? — 
with  the  details  of  English  politics  and  the  working  of 
the  English  judicial  system.  Hence  he  has  failed  to 
grasp  the  substantial  identity  of  the  American  people 
with  the  English.  He  perceives  that  there  are  many 
and  close  resemblances,  and  traces  much  that  is  Ameri- 
can to  an  English  source.  He  has  seen  and  described 
with  perfect  justness  and  clearness  the  mental  habits  of 
the  English  and  American  lawyer  as  contrasted  with 
those  of  the  French  lawyer.  But  he  has  not  grasped,  as 
perhaps  no  one  but  an  Englishman  or  an  American  can 
grasp,  the  truth  that  the  American  people  of  1830  was 
a  branch  of  the  English  people,  modified  in  some  direc- 
tions by  the  circumstances  of  its  colonial  life  and  its 
more  popular  government,  but  in  essentials  the  same. 
Hence  much  that  was  merely  English  appeared  to 
Tocqueville  to  be  American  or  democratic.  The  func- 
tions of  the  judges,  for  instance,  in  expounding  the  Con- 
stitution (whether  of  the  Federation  or  of  a  State)  and 
disregarding  a  statute  which  conflicts  therewith,  the  re- 
sponsibility of  an  official  to  the  ordinary  courts  of  the 
land,  the  co-existence  of  laws  of  a  higher  and  lower 
degree  of  authority,  seem  to  him  to  be  novel  and  brilliant 
inventions  instead  of  mere  instances  of  general  doctrines 
of  English  law,  adapted  to  the  circumstances  of  a  colony 


324  HAMILTON  AND   TOCQUEVILLE 

dependent  on  a  home  Government,  or  of  a  State  partially 
subordinated  to  a  Federal  Government.  The  absence 
of  what  the  French  call  '  Administration/  and  the  dis- 
position to  leave  people  to  themselves,  which  strike  him, 
would  not  surprise  an  Englishman  accustomed  to  the  like 
freedom.  Much  that  he  remarks  in  the  mental  habits  of 
the  ordinary  American,  his  latent  conservatism  for  in- 
stance, his  indifference  to  amusement  as  compared  with 
material  comfort,  his  commercial  eagerness  and  ten- 
dency to  take  a  commercial  view  of  all  things,  might 
have  been  just  as  well  remarked  of  the  ordinary  middle- 
class  Englishman,  and  had  nothing  to  do  with  a  demo- 
cratic government.  Other  features,  which  he  ascribes 
to  this  last-named  cause,  such  as  habits  of  easy  social 
intercourse,  the  disposition  to  prize  certain  particular 
virtues,  the  readiness  to  give  mutual  help,  are  equally 
attributable  to  the  conditions  of  life  that  existed  among 
settlers  in  a  wild  country  where  few  persons  were  raised 
by  birth  or  wealth  above  their  fellows,  and  every  one  had 
need  of  the  aid  of  others — conditions  whose  results  re- 
mained in  the  temper  of  the  people  even  when  the  com- 
munity had  passed  into  another  phase,  a  phase  in  which 
inequalities  of  wealth  were  already  marked,  and  tempta- 
tions had  begun  to  appear  which  did  not  beset  the  Puri- 
tans of  the  seventeenth  century. 

It  is  no  reproach  to  this  great  author  that  France 
formed  to  him  the  background  of  every  picture  whose 
foreground  was  the  New  World.  He  tells  us  frankly  in 
the  Introduction  that  the  phenomena  of  social  equality, 
as  they  existed  in  France,  and  the  political  consequences 
to  be  expected  from  them,  filled  his  mind  when  he  ex- 
amined the  institutions  of  America;  he  hoped  to  find 
there  lessons  by  which  France  might  profit :  '  J'ai  voulu 
y  trouver  des  enseignements  dont  nous  puissions  pro- 
fiter.'  But  with  this  purpose  before  him,  he  could  hardly 
avoid  laying  too  much  stress  on  points  which  seemed 
to  have  instruction  for  his  own  countrymen,  and  from 
fancying  those  things  to  be  abnormal,  or  at  least  spe- 


HAMILTON  AND   TOCQVEVILLE  325 

daily  noteworthy,  which  stood  contrasted  with  the  cir- 
cumstances of  France.  Tocqueville  is,  among  eminent 
French  writers,  one  of  the  least  prone  to  assume  the 
ways  and  ideas  of  his  own  country  to  be  the  rule,  and 
those  of  another  country  the  exception ;  yet  even  in  him 
the  tendency  lurks.  There  is  more  than  a  trace  of  it  in 
his  surprise  at  the  American  habit  of  using  without  abus- 
ing political  associations,  and  at  the  disposition  of 
Legislatures  to  try  experiments  in  legislation,  a  disposi- 
tion which  struck  him  chiefly  by  its  contrast  with  the  im- 
mutability which  the  Code  of  the  First  Empire  seemed 
to  have  stamped  upon  the  private  law  of  France. 

His  constant  reference  to  France  goes  deeper  than 
the  method  of  the  book.  It  determines  his  scope  and 
aim.  The  Democracy  in  America  is  not  so  much  a  politi- 
cal study  as  a  work  of  edification.  It  is  a  warning  to 
France  of  the  need  to  adjust  her  political  institutions  to 
her  social  condition,  and  above  all  to  improve  the  tone 
of  her  politics,  to  create  a  moral  and  religious  basis  for 
her  national  life,  to  erect  a  new  fabric  of  social  doctrine, 
in  the  place  of  that  which,  already  crumbling,  the  Revo- 
lution had  overthrown.  We  must  not,  therefore,  expect 
to  find  in  him  a  complete  description  and  criticism,  such 
as  a  German  would  have  given,  of  the  government  of 
America  in  all  its  details  and  aspects.  To  note  this  is 
not  to  complain  of  the  book.  What  Tocqueville  has  pro- 
duced is  more  artistic,  and  possibly  more  impressive 
than  such  a  description  would  have  been,  as  a  landscape 
gives  a  juster  notion  of  scenery  than  a  map.  His  book 
is  permanently  valuable,  because  its  reflections  and  ex- 
hortations are  applicable  not  merely  to  the  Frenchmen 
of  sixty-five  years  ago,  but  to  mankind  generally,  since 
they  touch  upon  failings  and  dangers  permanently  in- 
herent in  political  society.  Let  it  only  be  remembered 
that,  in  spite  of  its  scientific  form,  it  is  really  a  work  of 
art  quite  as  much  as  a  work  of  science,  and  a  work  suf- 
fused with  strong,  though  carefully  repressed,  emotion. 

The  best  illustration  I  can  give  of  these  tendencies  in 


326  HAMILTON  AND   TOCQUEVILLE 

our  author  will  be  found  in  a  comparison  of  the  first  part 
of  the  book,  published  in  1834,  and  now  included  in  the 
first  and  second  volumes  of  recent  editions,  with  the 
second  part  published  in  1840,  and  now  forming  the  third 
volume.  In  the  first  part  the  author  keeps  near  his  facts. 
Even  when  he  has  set  out  on  the  a  priori  road  he  pre- 
sently brings  his  theory  into  relation  with  American 
phenomena :  they  give  substance  to,  and  (so  to  speak) 
steady  the  theory,  while  the  theory  connects  and  illu- 
mines them.  But  in  the  second  part  (third  volume)  he 
soars  far  from  the  ground,  and  is  often  lost  in  the  clouds 
of  his  own  sombre  meditation.  When  this  part  was  writ- 
ten, the  direct  impressions  of  his  transatlantic  visit  had 
begun  to  fade  from  his  mind.  With  all  his  finesse  and 
fertility,  he  had  neither  sufficient  profundity  of  thought, 
nor  a  sufficient  ample  store  of  facts  gathered  from  his- 
tory at  large,  to  enable  him  to  give  body  and  substance  to 
his  reflections  on  the  obscure  problems  wherewith  he  at- 
tempts to  deal 1.  Hence,  this  part  of  the  book  is  not  so 
much  a  study  of  American  democracy  as  a  series  of 
ingenious  and  finespun  abstract  speculations  on  the  fea- 
tures of  equality  and  its  results  on  modern  society  and 
thought,  speculations  which,  though  they  have  been 
singled  out  for  admiration  by  some  high  judges,  such  as 
Ampere  and  Laboulaye,  will  appear  to  most  readers 
overfanciful,  overconfident  in  their  effort  to  construct  a 
general  theory  applicable  to  the  infinitely  diversified 
facts  of  human  society,  and  occasionally  monotonous  in 
their  repetition  of  distinctions  without  differences  and 
generalities  too  vague,  perhaps  too  hollow,  for  practical 
use. 

How  far  do  these  defects  of  Tocqueville's  work  affect 
its  value  for  our  present  purpose,  that  of  discovering 
from  it  what  was  the  condition,  political,  social,  intel- 
lectual, of  the  United  States  in  1833,  and  what  the  forces 

1  Sainte-Beuve  remarks  of  him,  '  Tl  a  commencd  &  penser  avant  d'avoir  rien 
appris  :  ce  qui  fait  qu'il  a  quelquefois  pens^  creux.'  Thiers  once  said,  in  the  Cham* 
ber,  '  Quand  je  considere  intuitivement,  commedirait  M.  de  Tocqueville.' 


HAMILTON  AND  TOCQUEVILLE  327 

that  were  then  at  work  in  determining  the  march  of  the 
nation  and  the  development  of  its  institutions? 

It  is  but  slightly  that  they  impair  its  worth  as  a  record 
of  facts.  Tocqueville  is  so  careful  and  so  unprejudiced 
an  observer  that  I  doubt  if  there  be  a  single  remark  of 
his  which  can  be  dismissed  as  either  erroneous  or  super- 
ficial. There  is  always  some  basis  for  every  statement  he 
makes.  But  the  basis  is  occasionally  too  small  for  the 
superstructure  of  inference,  speculation,  and  prediction 
which  he  rears  upon  it.  To  borrow  an  illustration  from 
chemistry,  his  analysis  is  always  right  so  far  as  it  is  quali- 
tative, sometimes  wrong  where  it  attempts  to  be  quanti- 
tative. The  fact  is  there,  but  it  is  perhaps  a  smaller  fact 
than  he  thinks,  or  a  transient  fact,  or  a  fact  whose  im- 
portance is,  or  shortly  will  be,  diminished  by  other  facts 
which  he  has  not  adequately  recognized. 

When  we  pass  from  description  to  argument  he  is  a 
less  safe  guide.  By  the  light  of  subsequent  experience 
we  can  perceive  that  he  mistook  transitory  for  perma- 
nent causes.  Many  of  the  phenomena  which  he  ascribes 
to  democracy  were  due  only  to  the  fact  that  large  for- 
tunes had  not  yet  grown  up  in  America,  others  to  the 
absence,  in  most  parts  of  the  country,  of  that  higher 
education  and  culture  which  comes  with  wealth,  leisure, 
and  the  settlement  of  society.  I  have  already  observed 
that  he  sometimes  supposes  features  of  American  poli- 
tics to  be  novel  and  democratic  which  are  really  old  and 
English ;  that  he  does  not  allow  sufficiently  for  the  im- 
print which  colonial  life  had  left  on  the  habits  and  ideas 
of  the  people,  an  imprint  which,  though  it  tends  to  wear 
off  with  time,  is  yet  also  modified  into  something  which, 
while  you  may  call  it  democratic,  remains  different  from 
the  democracy  of  an  old  European  country,  and  is  not 
an  index  to  the  character  of  democracy  in  general. 

It  need  hardly  be  said  that  the  worth  of  a  book  like 
his  is  not  to  be  measured  by  the  number  of  flaws  which 
can  be  discovered  under  the  critic's  microscope.  Even 
a  sovereign  genius  like  Aristotle  cannot  be  expected  to 


328  HAMILTON  AND   TOCQUEVILLE 

foresee  which  of  the  influences  he  discerns  will  retain 
their  potency :  it  is  enough  if  his  view  is  more  piercing 
and  more  comprehensive  than  that  of  his  greatest  con- 
temporaries, if  his  record  shows  the  high-water  mark  of 
the  learning  and  philosophy  of  the  time.  Had  history  fal- 
sified far  more  of  Tocqueville's  predictions  than  she  has 
done,  his  work  would  still  remain  eminently  suggestive 
and  stimulating.  And  it  is  edificatory  not  merely  be- 
cause it  contains  precepts  instinct  with  the  loftiest  mo- 
rality. It  is  a  model  of  that  spirit  of  fairness  and  justice, 
that  love  of  pure  truth  which  is  conspicuously  necessary, 
and  not  less  conspicuously  difficult,  in  the  discussion, 
even  the  abstract  discussion,  of  the  problems  of  political 
philosophy.  Few  books  inspire  a  higher  respect  for 
their  writer. 

V.  TOCQUEVILLE'S  VIEW   OF   THE  UNITED  STATES. 

Before  we  examine  the  picture  of  the  social  and  politi- 
cal phenomena  of  America  which  Tocqueville  has  drawn, 
let  us  see  what  were  the  chief  changes  that  had  passed 
on  the  territory  of  the  Union,  on  its  material  resources, 
on  the  habits  and  ideas  of  the  people,  during  the 
forty-six  years  that  elapsed  from  the  publication  of  the 
Federalist  to  that  of  the  Democratic  en  Anieriquc. 

The  territory  of  the  United  States  had  been  extended 
to  include  the  whole  valley  of  the  Mississippi,  while  to 
the  north-west  it  stretched  across  the  Rocky  Mountains 
as  far  as  the  Pacific.  All  beyond  the  Missouri  was  still 
wilderness,  much  of  it  wholly  unexplored,  but  to  the 
east  of  the  Mississippi  there  were  now  twenty-four 
States  with  an  area  of  2,059,043  square  miles  and  a  popu- 
lation of  fourteen  millions.  The  new  Western  States, 
though  rapidly  increasing,  were  still  so  raw  as  to  exer- 
cise comparatively  little  influence  on  the  balance  of  na- 
tional power,  which  vibrated  between  the  free  Northern 
and  the  Southern  Slave  States.  Slavery  was  not  an 
immediately  menacing  question,  for  the  first  wound  it 


HAMILTON  AND' TOCQUEVILLE  329 

made  had  been  skinned  over,  so  to  speak,  by  the  Mis- 
souri Compromise  of  1820;  but  it  was  evidently  preg- 
nant with  future  trouble,  for  the  number  of  slaves  was 
rapidly  increasing,  and  the  slaveholders  were  already 
resolved  to  retain  their  political  influence  by  the  creation 
of  new  slave  States.  The  great  Federalist  party  had 
vanished,  and  the  Republican-Democratic  party,  which 
had  triumphed  over  it,  had  just  been  split  into  several 
bitterly  hostile  factions.  Questions  of  foreign  policy 
were  no  longer  urgent,  for  Europe  had  ceased  to  menace 
America,  who  had  now  no  neighbours  on  her  own  conti- 
nent except  the  British  Crown  on  the  north  and  the 
Mexican  Republic  on  the  south  and  west.  The  protec- 
tive tariff  and  the  existence  of  the  United  States  Bank 
were  the  questions  most  agitated,  but  the  main  divid- 
ing party  lines  were  still  those  which  connected  them- 
selves with  the  stricter  or  looser  interpretation  of  the 
Federal  Constitution — that  is  to  say,  they  were  ques- 
tions as  to  the  extent  of  Federal  power  on  the  one  hand, 
as  to  the  rights  of  the  States  on  the  other.  New  Eng- 
land was  still  Puritan  and  commercial,  with  a  bias 
towards  protective  tariffs, the  Soilth  still  agricultural, and 
in  favour  of  free  trade.  The  rule  of  the  masses  had  made 
its  greatest  strides  in  New  York,  the  first,  among  the 
older  States,  which  introduced  the  new  methods  of  party 
organization  and  which  thoroughly  democratized  her 
Constitution1.  Everywhere  property  qualifications  for 
office  or  the  electoral  franchise  were  being  abolished, 
and  even  the  judges  formerly  nominated  by  the  State 
Governor  or  chosen  by  the  State  Legislature  were  be- 
ginning to  be  elected  by  manhood  suffrage  and  for  terms 
of  years.  In  fact  a  great  democratic  wave  was  passing 
over  the  country,  sweeping  away  the  old  landmarks,  de- 
stroying the  respect  for  authority,  casting  office  and 
power  more  and  more  into  the  hands  of  the  humbler 
classes,  and  causing  the  withdrawal  from  public  life  of 
men  of  education  and  refinement.  State  feeling  was  still 

1  The  process  of  democratization  was  completed  by  the  Constitution  of  1846. 


330  HAMILTON  AND   TOCQUEVILLE 

strong,  especially  in  the  South,  and  perhaps  stronger 
than  national  feeling,  but  the  activity  of  commerce  and 
the  westward  movement  of  population  were  breaking 
down  the  old  local  exclusiveness,  and  those  who  saw 
steamboats  plying  on  the  Hudson  and  heard  that  locomo- 
tive engines  wece  beginning  to  be  run  in  England,  might 
have  foreseen  that  the  creation  of  more  easy,  cheap,  and 
rapid  communications  would  bind  the  sections  of  the 
country  together  with  a  new  and  irresistible  power.  The 
time  was  one  of  great  commercial  activity  and  great  ap- 
parent prosperity;  but  large  fortunes  were  still  few, 
while  in  the  general  pursuit  of  material  objects  science, 
learning,  and  literature  had  fallen  into  the  background. 
Emerson  was  still  a  young  Unitarian  minister,  known 
only  to  the  circle  of  his  own  friends.  Channing  was  just 
rising  into  note;  Longfellow  and  Hawthorne,  Prescott 
and  Ticknor  had  not  begun  to  write.  Washington  Irving 
was  one  of  the  few  authors  whose  names  had  reached 
Europe.  How  disagreeable  the  manners  of  ordinary 
people  (for  one  must  of  course  except  the  cultivated 
circles  of  Boston  and  Philadelphia)  seemed  to  the  Euro- 
pean visitor  may  be  gathered  from  the  diaries  of  Richard 
Cobden  and  Sir  Charles  Lyell,  who  travelled  in  America 
a  year  or  two  after  Tocqueville.  There  was  a  good  deal 
of  ability  among  the  ruling  generation  of  statesmen — 
the  generation  of  1787  was  just  dying  out  with  Madison 
— but  only  three  names  can  be  said  to  have  survived  in 
the  world's  memory,  the  names  of  three  party  leaders 
who  were  also  great  orators,  Clay,  Calhoun,  and 
Webster1. 

In  those  days  America  was  a  month  from  Europe  and 
comparatively  little  affected  by  Europe.  Her  people 
walked  in  a  vain  conceit  of  their  own  greatness  and 
freedom,  and  scorned  instruction  from  the  effete  mo- 
narchies of  the  Old  World,  which  in  turn  repaid  them 

1  To  none  of  whom,  oddly  enough,  does  Tocqueville  refer.  He  is  singularly 
sparing  in  his  references  to  individuals,  mentioning  no  one  except  President  Jack- 
son for  blame  and  Livingston  (author  of  the  Louisiana  Code  and  Secretary  of 
State,  1831-3)  for  praise. 


HAMILTON  AND   TOCQUEVILLE  331 

with  contemptuous  indifference.  Neither  continent  had 
realized  how  closely  its  fortunes  were  to  be  inter- 
woven with  those  of  the  other  by  trade  and  the  move- 
ments of  population.  No  wheat,  no  cattle  were  sent 
across  the  Atlantic,  nor  had  the  flow  of  immigration 
from  Ireland,  much  less  from  Central  Europe,  as  yet 
begun. 

The  United  States  of  1834  had  made  enormous  ad- 
vances in  material  prosperity.  Already  a  great  nation, 
it  could  become  a  great  power  as  soon  as  it  cared  to 
spend  money  on  fleets  and  armies.  The  Federal  govern- 
ment had  stood  the  test  of  time  and  of  not  a  few  storms. 
Its  component  parts  knew  their  respective  functions, 
and  worked  with  less  friction  than  might  have  been  ex- 
pected. The  sense  of  national  unity,  powerfully  stimu- 
lated by  the  war  of  1812,  was  still  growing.  But  the 
level  of  public  life  had  not  risen.  It  was  now  rather 
below  than  above  that  of  average  private  society.  Even 
in  the  realm  of  morality  there  were  strange  contrasts. 
A  puritan  strictness  in  some  departments  of  conduct  and 
a  universal  recognition  of  the  sanctions  of  religion  co- 
existed in  the  North  with  some  commercial  laxity,  while 
the  semi-civilized  South,  not  less  religious  and  valuing 
itself  on  its  high  code  of  honour,  was  disgraced  by  the 
tolerance  accorded  to  duels  and  acts  of  murderous  vio- 
lence, not  to  speak  of  the  darker  evils  which  slavery 
brought  in  its  train.  As  respects  the  government  of 
States  and  cities,  democratic  doctrines  had  triumphed 
all  along  the  line.  The  masses  of  the  people  had  now 
realized  their  power,  and  entered  into  the  full  fruition  of 
it.  They  had  unlimited  confidence  in  their  wisdom  and 
virtue,  and  had  not  yet  discovered  the  dangers  incidental 
to  the  rule  of  numbers.  The  wise  elders,  or  the  philo- 
sophic minds  who  looked  on  with  distrust,  were  either 
afraid  to  speak  out,  or  deemed  it  hopeless  to  try  to  stem 
the  flowing  tide.  They  stood  aside  (as  Plato  says)  under 
the  wall  out  of  the  storm.  The  party  organizations  had 
just  begun  to  spread  their  tough  yet  flexible  network 


332  HAMILTON  AND  TOCQUEVILLE 

over  the  whole  country;  and  the  class  of  professional 
politicians,  at  once  the  creator  and  the  creature  of  such 
organizations,  was  already  formed.  The  offices  had, three 
years  before,  been  proclaimed  to  belong  to  the  victors 
as  spoils  of  war,  but  few  saw  to  what  consequences  this 
doctrine  was  to  lead.  I  will  not  say  that  it  was  a  period 
of  transition,  for  that  is  true  of  every  period  in  America, 
so  fast  do  events  move  even  in  the  quietest  times ;  but 
it  was  a  period  when  that  which  had  been  democratic 
theory  was  passing  swiftly  into  democratic  practice, 
when  the  seeds  sown  long  ago  by  Jefferson  had  ripened 
into  a  waving  crop,  when  the  forces  which  in  every  so- 
ciety react  against  extreme  democracy  were  unusually 
weak,  some  not  yet  developed,  some  afraid  to  resist  the 
stream. 


VI.    TOCQUEVILLE'S  IMPRESSIONS  AND  PROPHECIES. 

Let  us  see  what  were  the  impressions  which  the  Amer- 
ica of  1832  made  on  the  mind  of  Tocqueville.  I  do  not 
pretend  to  summarize  his  account,  which  every  student 
ought  to  read  for  himself,  but  shall  be  content  with  pre- 
senting the  more  salient  points  that  ought  to  be  noted 
in  comparing  1832  with  1788  on  the  one  hand,  and  1900 
on  the  other. 

He  is  struck  by  the  thoroughness  with  which  the  prin- 
ciple of  the  sovereignty  of  the  people  is  carried  out. 
Seventy  years  ago  this  principle  was  far  from  having 
obtained  its  present  ascendency  in  Western  Europe. 
In  America,  however,  it  was  not  merely  recognized  in 
theory,  but  consistently  applied  through  every  branch 
of  local,  State,  and  National  government. 

He  is  impressed  by  the  greater  importance  to  ordi- 
nary citizens  of  State  government  than  of  Federal  gov- 
ernment, and  their  warmer  attachment  to  the  former 
than  to  the  latter.  The  Federal  government  seems  com- 
paratively weak,  and  in  case  of  a  conflict  between  the 


HAMILTON  AND  TOCQUEVILLE  833 

two  powers,  the  loyalty  of  the  people  would  be  given 
rather  to  the  State1. 

He  finds  the  basis  of  all  American  government  in  the 
'commune/  i.e.  in  local  government,  the  ultimate  unit 
of  which  is  in  New  England  the  township,  in  the  South- 
ern and  Middle  States  the  county.  It  is  here  that  the 
bulk  of  the  work  of  administration  is  done,  here  that 
the  citizens  learn  how  to  use  and  love  freedom,  here  that 
the  wonderful  activity  they  display  in  public  affairs  finds 
its  chief  sphere  and  its  constant  stimulus. 

The  absence  of  what  a  European  calls  '  the  administra- 
tion '  is  remarkable.  Public  work  is  divided  up  between 
a  multitude  of  petty  and  unrelated  local  officials :  there 
is  no  '  hierarchy/  no  organized  civil  service  with  a  sub- 
ordination of  ranks.  The  means  employed  to  keep  offi- 
cials to  their  work  and  punish  offences  are  two — fre- 
quent popular  election  and  the  power  of  invoking  the 
ordinary  courts  of  justice  to  obtain  damages  for  negli- 
gence or  unwarranted  action.  But  along  with  the  ex- 
treme 'administrative  decentralization  '  there  exists  a  no 
less  extreme  '  governmental  centralization/  that  is  to 
say,  all  the  powers  of  government  are  collected  into  one 
hand,  that  of  the  people,  the  majority  of  the  voters.  This 
majority  is  omnipotent;  and  thus  authority  is  strong, 
capable  of  great  efforts,  capable  also  of  tyranny.  Hence 
the  value  of  local  self-government,  which  prevents  the 
abuse  of  power  by  a  central  authority :  hence  the  neces- 
sity for  this  administrative  decentralization,  which  atones 
for  its  want  of  skill  in  details  by  the  wholesome  influence 
it  exerts  on  the  character  of  the  people. 

The  judges  enjoy  along  with  the  dignity  of  their  Euro- 
pean brethren  the  singular  but  most  salutary  power  of 
'  declaring  laws  to  be  unconstitutional/  and  thus  they 
serve  to  restrain  excesses  of  legislative  as  well  as  of  ex- 
ecutive authority. 

The  President  appears  to  our  author  to  be  a  com- 

1  His  insistence  on  this  point  makes  it  all  the  more  strange  that  he  does  not  give 
any  description  of  a  State  as  a  commonwealth,  nor  characterize  the  general  fea- 
tures of  its  government. 


334  HAMILTON  AND  TOCQUEVILLE 

paratively  weak  official.  No  person,  no  group,  no  party, 
has  much  to  hope  from  the  success  of  a  particular  can- 
didate at  a  Presidential  election,  because  he  has  not 
much  to  give  away[!].  The  elective  system  unduly 
weakens  executive  authority,  because  a  President  who 
approaches  the  end  of  his  four  years'  term  feels  himself 
feeble,  and  dares  not  take  any  bold  step:  while  the  com- 
ing in  of  a  new  President  may  cause  a  complete  change 
of  policy.  His  re-eligibility  further  weakens  and  abases 
him,  for  he  must  purchase  re-election  by  intrigue  and  an 
unworthy  pandering  to  the  desires  of  his  party.  It  in- 
tensifies the  characteristic  fault  of  democratic  govern- 
ment, the  predominance  of  a  temporary  majority. 

The  Federal  Supreme  Court  is  the  noblest  product  of 
the  wisdom  of  those  who  framed  the  Federal  Constitu- 
tion. It  keeps  the  whole  machine  in  working  order,  pro- 
tecting the  Union  against  the  States,  and  each  part  of 
the  Federal  government  against  the  aggressions  of  the 
others.  The  strength  of  the  Federation,  naturally  a 
weak  form  of  government,  lies  in  the  direct  authority 
which  the  Federal  courts  have  over  the  individual  citi- 
zen :  while  the  action  of  these  Courts,  even  against  a 
State,  gives  less  offence  than  might  be  expected  because 
they  do  not  directly  attack  its  statutes,  but  merely,  at  the 
instance  of  an  individual  plaintiff  or  defendant,  secure  to 
him  rights  which  those  statutes  may  have  incidentally 
infringed. 

The  Federal  Constitution  is  much  superior  to  the 
State  Constitutions ;  the  Federal  Legislature,  Executive 
and  Judiciary,  are  all  of  them  more  independent  of  the 
popular  majority,  and  freer  in  their  action  than  the  cor- 
responding authorities  in  the  several  States.  Similarly 
the  Federal  government  is  better  than  those  of  the 
States,  wiser,  more  skilful,  more  consistent,  more  firm. 

The  day  of  great  parties  is  past :  there  is  now  a  feverish 
agitation  of  small  parties  and  a  constant  effort  to  create 
parties,  to  grasp  at  some  principle  or  watchword  under 
which  men  may  group  themselves,  probably  for  selfish 


HAMILTON  AND  TOCQUEVILLE  335 

ends.  Self-interest  is  at  the  bottom  of  the  parties,  yet 
aristocratic  or  democratic  sentiment  attaches  itself  to 
each  of  them,  that  is  to  say,  when  a  practical  issue  arises, 
the  old  antithesis  of  faith  in  the  masses  and  distrust  of 
the  masses  reappears  in  the  view  which  men  and  parties 
take  of  it.  The  rich  mix  little  in  politics.  Secretly  dis- 
gusted at  the  predominance  of  the  crowd,  they  treat 
their  shoemaker  as  an  equal  when  they  meet  him  on  the 
street,  but  in  their  luxurious  homes  lament  the  vulgarity 
of  public  life  and  predict  a  bad  end  for  democracy. 

Next  to  the  people,  the  greatest  power  in  the  country 
is  the  press :  yet  it  is  less  powerful  than  in  France,  be- 
cause the  number  of  journals  is  so  prodigious,  because 
they  are  so  poorly  written,  because  there  is  no  centre 
like  Paris.  Advertisements  and  general  news  occupy 
far  more  of  their  space  than  does  political  argument,  and 
in  the  midst  of  a  din  of  opposing  voices  the  ordinary 
citizen  retains  his  dull  fixity  of  opinion,  the  prejudices  of 
his  sect  or  party. 

A  European  is  surprised,  not  only  at  the  number  of 
voluntary  associations  aiming  at  public  objects,  but  at 
the  tolerance  which  the  law  accords  to  them.  They  are 
immensely  active  and  powerful,  and  do  not  threaten 
public  security  as  they  would  in  France,  because  they 
admit  themselves,  by  the  very  fact  of  their  existence,  to 
represent  a  minority  of  voters,  and  seek  to  prevail  by 
force  of  argument  and  not  of  arms. 

Universal  suffrage,  while  it  gives  admirable  stability 
to  the  government,  does  not,  as  people  in  Europe  expect 
that  it  will,  bring  the  best  men  to  the  top.  On  the  con- 
trary, the  governors  are  inferior  to  the  governed  l.  The 
best  men  do  not  seek  either  office  or  a  seat  in  the  House 
of  Representatives,  and  the  people,  without  positively 
hating  the  *  upper  classes,'  do  not  like  them ;  and  care- 

1  This  is  a  common  remark  of  visitors  to  America,  but  it  arises  from  their  mis- 
taking the  people  they  see  in  society  for  'the  governed'  in  general.  They  go 
carrying  introductions  to  rich  or  educated  people .-  if  they  mixed  with  the  masses 
they  would  form  a  different  notion  of  '  the  governed,'  as  Tocqueville  rather  oddly 
calls  the  ordinary  citizens. 


336  HAMILTON  AND  TOCQUEVILLE 

fully  keep  them  out  of  power.  '  II  ne  craint  point  les 
grands  talents,  mais  il  les  goute  peu.' 

The  striking  inferiority  of  the  House  to  the  Senate 
is  due  to  the  fact  that  the  latter  is  a  product  of  double 
election,  and  it  is  to  double  election  that  democracies 
must  come  if  they  will  avoid  the  evils  inseparable  from 
placing  political  functions  in  the  hands  of  every  class  of 
the  people  1. 

American  magistrates  are  allowed  a  wider  arbitrary 
discretion  than  is  common  in  Europe,  because  they  are 
more  constantly  watched  by  the  sovereign  people,  and 
are  more  absolutely  at  their  mercy  2. 

Every  office  is,  in  America,  a  salaried  office ;  nor  can 
anything  be  more  conformable  to  the  spirit  of  a  demo- 
cracy. The  minor  offices  are,  relatively  to  Europe,  well 
paid,  the  higher  ones  ill  paid.  Nobody  wears  any  dress 
or  displays  any  insignia  of  office  3. 

Administration  has  both  an  unstable  and  an  unscien- 
tific character.  Few  records  are  kept  of  the  acts  of 
departments:  little  information  is  accumulated:  even 
original  documents  are  neglected.  Tocqueville  was 
sometimes  given  such  documents  in  answer  to  his 
queries,  and  told  that  he  might  keep  them.  The  con- 
duct of  public  business  is  a  hand  to  mouth,  rule  of  thumb 
sort  of  affair  4. 

Not  less  instability  reigns  in  the  field  of  legislation. 
Laws  are  being  constantly  changed;  nothing  remains 
fixed  or  certain  5. 

1  It  is  surprising  that  Tocqueville  should  have  supposed  this  to  be  the  cause  of 
the  excellence  he  ascribes  to  the  Senate,  considering  that  the  more  obvious,  as  well 
as  the  true,  explanation  is  to  be  found  in  the  fact  that  the  wider  powers  and  longer 
term  of  the  Senate  made  the  ablest  men  seek  entrance  to  it. 

2  The  only  instance  given  of  this  is  in  the  discretion  allowed  to  the  officers  of  the 
New  England  townships,  whose  functions  are,  however,  unimportant.     The  state- 
ment cannot  have  been  generally  true. 

8  This  remained  true  till  very  recent  years  as  regards  public  officials,  save  and 
except  the  Judges  of  the  Supreme  Court  when  sitting  at  Washington.  But  lately 
the  Supreme  Court  Judges  of  some  States  have  begun  to  wear  gowns. 

4  This  has  ceased  to  be  true  in  Federal  administration,  and  in  that  of  the  more 
advanced  States. 

5  Tocqueville  does  not  say  whether  he  intends  this  remark  to  apply  to  State  legis- 
lation only  or  to  Federal  legislation  also.     He  quotes  dicta  of  Hamilton,  Madison, 
and  Jefferson  to  the  same  effect,  but  these  testimonies,  or  most  of  them,  refer  to  a 


HAMILTON  AND   TOCQUEVILLE  337 

It  is  a  mistake  to  suppose  that  democratic  govern- 
ments are  specially  economical.  They  are  parsimonious 
in  salaries,  at  least  to  the  higher  officials,  but  they  spend 
freely  on  objects  beneficial  to  the  mass  of  the  people, 
such  as  education,  while  the  want  of  financial  skill  in- 
volves a  good  deal  of  waste.  You  must  not  expect 
economy  where  those  who  pay  the  bulk  of  the  taxes  are 
a  mere  fraction  of  those  who  direct  their  expenditure. 
If  ever  America  finds  herself  among  dangers,  her  taxa- 
tion will  be  as  heavy  as  that  of  European  monarchies. 

There  is  little  bribery  of  voters,  but  many  charges 
against  the  integrity  of  politicians.  Now  the  corruption 
of  the  '  governors  '  is  worse  than  that  of  the  '  governed/ 
for  it  lowers  the  tone  of  public  morals  by  presenting 
the  spectacle  of  prosperous  turpitude. 

The  American  democracy  is  self-indulgent  and  self- 
complacent,  slow  to  recognize,  still  more  slow  to  correct, 
its  faults.  But  it  has  the  unequalled  good  fortune  of 
being  able  to  commit  reparable  errors  (la  faculte  de  faire 
des  f antes  rcparablcs).  It  can  sin  with  impunity. 

It  is  eminently  ill-fitted  to  conduct  foreign  policy. 
Fortunately  it  has  none. 

The  benefits  which  American  society  derives  from  its 
democratic  government  are  summed  up  as  follows : — 

As  the  majority  make  the  laws,  their  general  ten- 
dency, in  spite  of  many  errors  in  detail,  is  to  benefit  the 
majority,  because  though  the  means  may  sometimes  be 
ill  chosen,  the  end  is  always  the  same.  Hence  the  coun- 
try prospers. 

Every  one  is  interested  in  the  welfare  of  the  country, 
because  his  own  welfare  is  bound  up  with  it.  This 
patriotism  may  be  only  an  enlarged  egotism,  but  it  is 
powerful  nevertheless,  for  it  is  a  permanent  sentiment, 
independent  of  transient  enthusiasms.  Its  character  ap- 

time  anterior  to  the  creation  of  the  Federal  Constitution.  If  it  is  true  that  State 
laws  were  being  constantly  changed  in  1832,  this  can  have  been  true  only  of  ad- 
ministrative statutes,  not  of  private  law  generally.  One  is  tempted  to  believe  that 
Tocqueville  was  unconsciously  comparing  America  with  France,  where  the  Code 
has  arrested  legislation  to  an  extent  surprising  to  an  English  observer. 
22 


338  HAMILTON  AND   TOCQUEVILLE 

pears  in  the  childish  intolerance  of  criticism  which  the 
people  display.  They  will  not  permit  you  to  find  fault 
with  any  one  of  their  institutions  or  habits,  not  even  if 
you  praise  all  the  rest 1. 

There  is  a  profound  respect  for  every  political  right, 
and  therefore  for  every  magistrate,  and  for  the  authority 
of  the  law,  which  is  the  work  of  the  people  themselves. 
If  there  be  exceptions  to  this  respect,  they  are  to  be 
found  among  the  rich,  who  fear  that  the  law  may  be 
made  or  used  to  their  detriment. 

The  infinite  and  incessant  activity  of  public  life,  the 
responsibilities  it  casts  on  the  citizen,  the  sense  of  his 
importance  which  it  gives  him,  have  stimulated  his  whole 
nature,  and  made  him  enterprising  in  all  private  affairs 
also.  Hence,  in  great  measure,  the  industrial  prosperity 
of  the  country.  Democracy  effects  more  for  the  material 
progress  of  a  nation  than  in  the  way  of  rendering  it  great 
in  the  arts,  or  in  poetry,  or  in  manners,  or  in  elevation 
of  character,  or  in  the  capacity  for  acting  on  other  na- 
tions and  leaving  a  great  name  in  history. 

We  now  come  to  the  darker  side  of  the  picture.  In 
democracies,  the  majority  is  omnipotent,  and  in  Amer- 
ica the  evils  hence  flowing  are  aggravated  by  the  short- 
ness of  the  term  for  which  a  legislature  is  chosen,  by  the 
weakness  of  the  Executive,  by  the  incipient  disposition 
to  choose  even  the  judges  by  popular  vote,  by  the  notion 
universally  accepted  that  the  majority  must  be  right. 
The  majority  in  a  legislature  being  unchecked,  laws  are 
hastily  made  and  altered,  administration  has  no  perma- 
nence, officials  are  allowed  a  dangerously  wide  range 
of  arbitrary  authority.  There  is  no  escape  from  the 
tyranny  of  the  majority.  It  dominates  even  thought, 
forbidding,  not  indeed  by  law,  but  through  social  penal- 
ties no  less  effective  than  legal  ones,  the  expression  of 
any  opinion  displeasing  to  the  ordinary  citizen.  In  the- 

1  Every  one  knows  how  frequently  European  visitors  used  to  comment  upon 
this  American  trait.  It  is  now  much  less  noticeable  than  formerly.  I  can  even  say 
from  experience  that  it  has  sensibly  diminished  since  1870. 


HAMILTON  AND  TOCQUEVILLE  339 

ology,  even  in  philosophy,  one  must  beware  of  any  di- 
vergence from  orthodoxy.  No  one  dare  tell  an  unwel- 
come truth  to  the  people,  for  it  will  receive  nothing  but 
incense.  Such  repression  sufficiently  explains  the  ab- 
sence of  great  writers  and  of  great  characters  in  public 
life.  It  is  not  therefore  of  weakness  that  free  govern- 
ment in  America  will  ever  perish,  but  through  excess  of 
strength,  the  majority  driving  the  minority  to  despair 
and  to  arms. 

There  are,  however,  influences  which  temper  the  des- 
potism of  the  majority.  One  is  the  existence  of  a 
strong  system  of  local  self-government,  whereby  nearly 
all  administration  is  decentralized.  Another  is  the  power 
of  the  lawyers,  a  class  everywhere  disposed  to  maintain 
authority  and  to  defend  that  which  exists,  and  specially 
so  disposed  in  England  and  America  because  the  law 
which  they  study  and  practise  is  founded  on  precedents 
and  despises  abstract  reason.  A  third  exists  in  the  jury, 
and  particularly  the  jury  in  its  action  in  civil  causes,  for 
it  teaches  the  people  not  only  the  regular  methods  of 
law  and  justice,  but  respect  for  law  and  for  the  judges 
who  administer  it. 

Next  we  come  to  an  enumeration  of  the  causes  which 
maintain  republican  government.  They  are,  over  and 
above  the  constitutional  safeguards  already  discussed, 
the  following: — 

The  absence  of  neighbouring  States,  and  the  conse- 
quent absence  of  great  wars,  of  financial  crises  l,  of  in- 
vasions or  conquests.  How  dangerous  to  republics  is 
the  passion  for  military  glory  is  shown  by  the  two  elec- 
tions of  General  Jackson  to  be  President,  a  man  of 
violent  temper  and  limited  capacity,  recommended  by 
nothing  but  the  memory  of  his  victory  at  New  Orleans 
twenty  years  before  2. 

1  This  observation  seems  strange  indeed  to  any  one  who  remembers  the  com- 
mercial history  of  the  United  States  since  the  great  crisis  of  1838. 

a  Jackson's  popularity  began  with  his  military  exploit :  but  his  hold  on  the  peo- 
ple was  due  to  other  causes  also.  His  election  coincided  with  the  rise  of  the  great 
democratic  wave  already  referred  to. 


340  HAMILTON  AND  TOCQUEVILLE 

The  absence  of  a  great  capital. 

The  material  prosperity  of  the  country,  due  to  its  im- 
mense extent  and  natural  resources,  which  open  a 
boundless  field  in  which  the  desire  of  gain  and  the  love 
of  independence  may  gratify  themselves  and  render  the 
vices  of  man  almost  as  useful  to  society  as  his  virtues. 
The  passions  which  really  agitate  America  are  commer- 
cial, not  political. 

The  influence  of  religion.  American  Protestantism  is 
republican  and  democratic;  American  Catholicism  no 
less  so ;  for  Catholicism  itself  tends  to  an  equality  of  con- 
ditions, since  it  treats  all  men  alike.  The  Catholic  clergy 
are  as  hearty  republicans  as  any  others. 

The  indirect  influence  of  religion  on  manners  and  mo- 
rality. Nowhere  is  marriage  so  much  respected  and  the 
relations  of  the  sexes  so  well  ordered.  The  universal 
acceptance  of  Christianity,  an  acceptance  which  imposes 
silence  even  on  the  few  sceptics  who  may  be  supposed 
to  exist  there  as  everywhere,  steadies  and  restrains 
men's  minds.  *  No  one  ventures  to  proclaim  that  every- 
thing is  permissible  in  the  interests  of  society.  Impious 
maxim,  which  seems  to  have  been  invented  in  an  age  of 
liberty  in  order  to  give  legitimacy  to  all  tyrants  to  come.' 
The  Americans  themselves  cannot  imagine  liberty  with- 
out Christianity.  And  the  chief  cause  why  religion  is  so 
powerful  among  them  is  because  it  is  entirely  separated 
from  the  State1. 

The  intelligence  of  the  people,  and  their  education, 
but  especially  their  practical  experience  in  working  their 
local  politics.  However,  though  everybody  has  some  ed- 
ucation, letters  and  culture  do  not  flourish.  The  Ameri- 
cans regard  literature  properly  so  called  with  disfavour : 
they  are  averse  to  general  ideas.  They  have  no  great  his- 
torian, not  a  single  poet,  legal  commentators  but  no 
publicists,  good  artisans  but  very  few  inventors [ !] 

1  I  do  not  profess  to  summarize  in  these  few  lines  all  that  Tocqueville  says  of 
the  character  and  influence  of  Christianity  in  the  United  States,  for  he  devotes 
many  pages  to  it,  and  they  are  among  the  wisest  and  most  permanently  true  that 
he  has  written. 


HAMILTON  AND  TOCQUEVILLE  341 

Of  all  these  causes,  the  most  important  are  those 
which  belong  to  the  character  and  habits  of  the  people. 
These  are  infinitely  more  important  sources  of  well- 
being  than  the  laws,  as  the  laws  are  in  turn  more  im- 
portant than  the  physical  conditions  l. 

Whether  democracy  will  succeed  in  other  parts  of  the 
world  is  a  question  which  a  study  of  America  does  not 
enable  the  observer  confidently  to  answer.  Her  insti- 
tutions, however  suitable  to  her  position  in  a  world  of 
her  own,  could  not  be  transferred  bodily  to  Europe. 
But  the  peace  and  prosperity  which  the  Union  enjoys 
under  its  democratic  government  do  raise  a  strong  pre- 
sumption in  favour  of  democracy  even  in  Europe.  For 
the  passions  and  vices  which  attack  free  government 
are  the  same  in  America  as  in  Europe,  and  as  the  legis- 
lator has  overcome  many  of  them  there,  combating  envy 
by  the  idea  of  rights,  and  the  presumptuous  ignorance 
of  the  crowd  by  the  practice  of  local  government,  he 
may  overcome  them  here  in  Europe  likewise. 

One  may  imagine  institutions  for  a  democracy  other 
than  those  the  Americans  have  adopted,  and  some  of 
them  better  ones.  Since  it  seems  probable  that  the  peo- 
ples of  Europe  will  have  to  choose  between  democracy 
and  despotism,  they  ought  at  least  to  try  the  former,  and 
may  be  encouraged  by  the  example  of  America. 

A  concluding  chapter  is  devoted  to  speculations  on  the 
future  of  the  three  races  which  inhabit  the  territories  of 
the  United  States.  I  need  not  transcribe  what  he  says  of 
the  unhappy  Indian  tribes.  Their  fate  was  then  already 
certain :  the  process  which  he  saw  passing  in  Alabama 
and  Michigan  afterwards  repeated  itself  in  California 
and  Oregon. 

The  presence  of  the  blacks  is  the  greatest  evil  that 
threatens  the  United  States.  They  increase,  in  the  Gulf 
States,  faster  than  do  the  whites.  They  cannot  be  kept 

1  Like  most  of  his  contemporaries,  Tocqueville  failed  to  appreciate  the  enormous 
influence  of  physical  environment,  which  has,  however,  doubtless  increased,  so  far 
as  America  is  concerned,  through  the  scientific  discoveries  made  since  the  date  of 
his  journey. 


342  HAMILTON  AND   TOCQUEVILLE 

for  ever  in  slavery,  since  the  tendencies  of  the  modern 
world  run  strongly  the  other  way.  They  cannot  be  ab- 
sorbed into  the  white  population,  for  the  whites  will  not 
intermarry  with  them,  not  even  in  the  North  where  they 
have  been  free  for  two  generations.  Once  freed,  they 
would  be  more  dangerous  than  now,  because  they  would 
not  long  submit  to  be  debarred  from  political  rights.  A 
terrible  struggle  would  ensue.  Hence  the  Southern 
Americans,  even  those  who  regret  slavery,  are  forced  to 
maintain  it,  and  have  enacted  a  harsh  code  which  keeps 
the  slave  as  near  as  possible  to  a  beast  of  burden,  for- 
bidding him  to  be  taught  and  making  it  difficult  for  him 
to  be  manumitted.  No  one  in  America  seems  to  see  any 
solution.  The  North  discusses  the  problem  with  noisy 
inquietude.  The  South  maintains  an  ominous  silence. 
Slavery  is  evidently  economically  mischievous,  for  the 
free  States  are  far  more  prosperous :  but  the  South  holds 
to  slavery  as  a  necessity. 

As  to  the  Federal  Union,  it  shows  many  signs  of  weak- 
ness. The  States  have  most  of  the  important  powers 
of  government  in  their  hands ;  they  have  the  attachment 
of  the  people;  they  act  with  vigour  and  promptitude, 
while  the  Federal  authority  hesitates  and  argues.  In 
every  struggle  that  has  heretofore  arisen  the  Federal 
Government  has  given  way,  and  it  possesses  neither  the 
material  force  to  coerce  a  rebellious  State  nor  a  clear 
legal  right  to  retain  a  member  wishing  to  dissolve  the 
Federal  tie.  But  although  the  Union  has  no  national 
patriotism  to  support  it  (for  the  professions  of  such 
patriotism  one  hears  in  America  are  but  lip-deep),  it  is 
maintained  by  certain  interests — those  material  interests 
which  each  part  of  the  country  has  in  remaining  politi- 
cally united  with  the  rest.  Against  these  one  finds  no 
strong  interests  making  for  material  severance,  but  one 
does  find  diversities,  not  indeed  of  opinion — for  opinions 
and  ideas  are  wonderfully  similar  over  the  whole  coun- 
try— but  of  character,  particularly  between  Northern 
and  Southern  men,  which  increase  the  chances  of  discord. 


HAMILTON  AND   TOCQUEVILLE  343 

And  in  the  rapid  growth  of  the  Union  there  lies  a  real 
source  of  danger.  Its  population  doubles  every  twenty- 
two  years.  Before  a  century  has  passed  its  territory  will 
be  covered  by  more  than  a  hundred  millions  of  people 
and  divided  into  forty  States1.  Now  all  partnerships 
are  more  difficult  to  keep  together  the  more  the  number 
of  partners  increases  2.  Even  admitting,  therefore,  that 
this  hundred  millions  of  people  have  similar  interests 
and  are  benefited  by  remaining  united,  still  the  mere 
fact  that  they  will  then  form  forty  nations,  distinct  and 
unequally  powerful,  will  make  the  maintenance  of  the 
Federal  Government  only  a  happy  accident.  '  I  cannot 
believe  in  the  duration  of  a  government  whose  task  is  to 
hold  together  forty  different  peoples  spread  over  a  sur- 
face equal  to  the  half  of  Europe,  to  avoid  rivalries,  ambi- 
tions, and  struggles  among  them,  and  to  unite  the  action 
of  their  independent  wills  for  the  accomplishment  of  the 
same  plans  V 

The  greatest  danger,  however,  which  the  Union  incurs 
as  it  grows  is  the  transference  of  forces  which  goes  on 
within  its  own  body.  The  Northern  States  increase 
more  rapidly  than  the  Southern,  those  of  the  Mississippi 
Valley  more  rapidly  still.  Washington,  which  when 
founded  was  in  the  centre  of  the  Union,  is  now  at  one 
end  of  it.  The  disproportionate  growth  of  some  States 
menaces  the  independence  of  others.  Hence  the  South 
has  become  suspicious,  jealous,  irritable.  It  fancies  itself 
oppressed  because  outstripped  in  the  race  of  prosperity 
and  no  longer  dominant.  It  threatens  to  retire  from  a 
partnership  whose  charges  it  bears,  but  whose  profits  it 
does  not  share  4. 

Besides  the  danger  that  some  States  may  withdraw 

1  There  are  now  forty-five,  with  a  population  of  nearly  eighty  millions. 

8  No  proof  is  given  of  this  proposition,  which  is  by  no  means  self-evident,  and 
which  has  indeed  all  the  air  of  a  premiss  laid  down  by  a  schoolman  of  the  thir- 
teenth century. 

1  He  has,  however,  nowhere  attempted  to  prove  that  the  States  deserve  to  be 
called  '  nations '  or  '  peoples.' 

4  The  protective  tariff  was  felt  as  a  grievance  by  the  South,  being  imposed  in  the 
interest  of  the  Northern  and  Middle  States.  No  doubt,  the  North  got  more  pecu- 
niary gain  out  of  the  Union  than  the  South  did. 


344  HAMILTON  AND  TOCQUEVILLE 

from  the  Union  (in  which  case  there  would  probably  be 
formed  several  federations,  for  it  is  highly  unlikely  that 
the  original  condition  of  State  isolation  would  reappear), 
there  is  the  danger  that  the  central  Federal  authority 
may  continue  to  decline  till  it  has  become  no  less  feeble 
than  was  the  old  Confederation.  Although  Americans 
fear,  or  pretend  to  fear,  the  growth  of  centralization  and 
the  accumulation  of  powers  in  the  hands  of  the  Federal 
Government,  there  can  be  little  doubt  that  the  central  au- 
thority has  been  growing  steadily  weaker,  and  is  less  and 
less  able  to  face  the  resistance  of  a  refractory  State.  The 
concessions  of  public  territory  made  to  the  States,  the 
hostility  to  the  United  States  Bank,  the  (virtual)  success 
of  South  Carolina  in  the  Nullification  struggle,  are  all 
proofs  of  this  truth.  General  Jackson,  now  (1832)  Presi- 
dent, is  at  this  moment  strong,  but  only  because  he  flat- 
ters the  majority  and  lends  himself  to  its  passions.  His 
personal  power  may  increase,  but  that  of  the  President 
declines.  '  Unless  I  am  strangely  mistaken,  the  Federal 
Government  of  the  United  States  tends  to  become  daily 
weaker;  it  draws  back  from  one  kind  of  business  after 
another,  it  more  and  more  restricts  the  sphere  of  its 
action.  Naturally  feeble,  it  abandons  even  the  appear- 
ance of  force.  On  the  other  side,  I  think  I  perceive  that 
in  the  United  States  the  sentiment  of  independence  be- 
comes more  and  more  lively  in  the  States,  and  the  love  of 
provincial  government  more  and  more  pronounced. 
People  wish  to  keep  the  Union,  but  to  keep  it  reduced 
to  a  shadow :  they  would  like  to  have  it  strong  for  some 
purposes  and  weak  for  the  rest — strong  in  war  and  al- 
most non-existent  in  peace — forgetting  that  such  alter- 
nations of  strength  and  weakness  are  impossible.' 

Nevertheless  the  time  when  the  Federal  power  will 
be  extinguished  is  still  distant,  for  the  continuance  of 
the  Union  is  desired,  and  when  the  weakness  of  the  Gov- 
ernment is  seen  to  threaten  the  life  of  the  Union,  there 
may  be  a  reaction  in  its  favour. 

Whatever  may  be  the  future  of  the  Federation,  that 


HAMILTON  AND  TOCQUEVILLE  345 

of  republicanism  is  well  assured.  It  is  deeply  rooted 
not  only  in  the  laws,  but  in  the  habits,  the  ideas,  the 
sentiments,  even  the  religion  of  the  people.  It  is  indeed 
just  possible  that  the  extreme  instability  of  legislation 
and  administration  may  some  day  disgust  the  Americans 
with  their  present  government,  and  in  that  case  they  will 
pass  rapidly  from  republicanism  to  despotism,  not  stop- 
ping by  the  way  in  the  stage  of  limited  monarchy.  An 
aristocracy,  however,  such  as  that  of  the  old  countries 
of  Europe,  can  never  grow  up.  Democratic  equality 
will  survive,  whatever  be  the  form  which  government 
may  take. 

This  brief  summary,  which  conveys  no  impression  of 
the  elegance  and  refinement  of  Tocqueville's  reasonings, 
need  not  be  pursued  to  include  his  remarks  on  the  com- 
mercial and  maritime  greatness  of  the  United  States, 
nor  his  speculations  on  the  future  of  the  Anglo-Ameri- 
can race.  Still  less  shall  I  enter  on  the  second  part  of 
the  book,  for  (as  has  been  observed  already)  it  deals 
with  the  ideas  of  democracy  and  equality  in  a  very  ab- 
stract and  sometimes  unfruitful  way,  and  it  would  need 
a  separate  critical  study. 

But  before  passing  on  to  consider  how  far  the  United 
States  now  differs  from  the  republic  which  the  French 
philosopher  described,  we  must  pause  to  ask  ourselves 
whether  his  description  was  complete. 

It  is  a  salutary  warning  to  those  who  think  it  easy  to 
get  to  the  bottom  of  the  political  and  social  phenomena 
of  a  nation,  to  find  that  so  keen  and  so  industrious  an 
observer  as  Tocqueville,  who  seized  with  unrivalled 
acuteness  and  described  with  consummate  art  many  of 
the  minor  features  of  American  politics,  omitted  to  no- 
tice several  which  had  already  begun  to  show  their  heads 
in  his  day,  and  have  since  become  of  the  first  importance. 
Among  these  are — 

The  system  of  party  organization.  It  was  full  grown 
in  some  States  (New  York  for  instance),  and  spreading 
quickly  through  the  rest. 


846  HAMILTON  AND   TOCQUEVILLE 

The  influence  of  commercial  growth  and  closer  com- 
mercial relations  in  binding  together  different  States 
of  the  Union  and  breaking  down  the  power  of  State 
sentiment.  He  does  in  one  passage  refer  to  this  influ- 
ence, but  is  far  from  appreciating  the  enormous  force  it 
was  destined  to  exercise,  and  must  have  exercised  even 
without  railways. 

The  results  of  the  principle  proclaimed  definitely  just 
before  his  visit,  and  already  operative  in  some  places, 
that  public  office  was  to  be  bestowed  as  a  reward  for 
political  service,  and  held  only  so  long  as  the  party  which 
bestowed  it  remained  in  power. 

The  assertion  by  President  Monroe  of  the  intention 
of  the  United  States  to  regard  as  unfriendly  (i.e.  to  do 
their  best  to  resist)  any  extension  of  the  '  European 
system  '  to  the  American  Continent,  and  any  further 
colonization  thereof  or  intrusion  by  European  powers 
thereon. 

The  rise  of  the  Abolitionists  (they  had  begun  to  or- 
ganize themselves  before  1830,  and  formed  a  National 
Anti-Slavery  Society  in  1833)  and  the  intense  hostility 
they  aroused  in  the  South. 

The  growth  of  the  literary  spirit,  and  the  beginnings 
of  literary  production.  The  society  which  produced 
Washington  Irving,  Fenimore  Cooper,  Channing,  Haw- 
thorne, Emerson,  Longfellow,  Thoreau,  Prescott,  Tick- 
nor,  Margaret  Fuller,  Holmes,  Lowell,  Parkman — not 
to  add  some  almost  equally  famous  later  names — de- 
served mention  as  a  soil  whence  remarkable  fruits  might 
be  expected  which  would  affect  the  whole  nation.  Yet 
it  is  not  once  referred  to,  although  one  can  perceive  that 
Tocqueville  had  spent  some  time  in  Boston,  for  many 
of  his  views  are  evidently  due  to  the  conversations  he 
held  with  the  leading  Whigs  of  that  day  there. 

The  influence  of  money  on  politics.  It  might  surely 
have  been  foretold  that  in  a  country  with  such  resources, 
and  among  a  people  whose  restless  commercial  activity 
would  be  able  to  act  on  a  vast  scale,  great  piles  of  wealth 


HAMILTON  AND   TOCQUEVILLE  347 

would  soon  be  accumulated,  that  this  wealth  would  per- 
ceive objects  which  it  might  accomplish  by  legislative 
aid,  would  seek  to  influence  governments,  and  would 
find  ample  opportunities  for  doing  so.  But  of  the 
dangers  that  must  thence  arise  we  do  not  hear  a  word. 

VII.  EXAMINATION  OF  TOCQUEVILLE'S  VIEWS. 

Such  was  the  aspect  of  the  United  States  in  1832, 
such  the  predictions  which  an  unusually  penetrating  and 
philosophic  mind  formed  of  its  future.  I  will  not  attempt 
to  inquire  how  far  the  details  of  the  picture  are  accu- 
rate, because  it  would  be  unprofitable  to  contest  state- 
ments without  assigning  one's  own  reasons,  while  to 
assign  them  would  lead  me  into  a  historical  disquisition. 
A  shorter  and  simpler  course  will  be  to  inquire  in  what 
respects  things  have  changed  since  his  time,  for  thus  we 
shall  be  in  a  position  to  discern  which  of  the  tendencies 
he  noted  have  proved  permanent,  what  new  tendencies 
have  come  into  being,  what  are  the  main  tendencies 
which  are  now  controlling  the  destinies  of  the  Republic. 

I  have  noted  at  the  end  of  last  section  the  phenomena 
which,  already  existing  in  Tocqueville's  day,  he  omitted 
to  notice  or  to  appraise  to  their  due  value.  Let  us  see 
what  time  has  brought  forward  since  his  day  to  alter 
the  conditions  of  the  problem  as  he  saw  it. 

The  great  events  that  have  befallen  since  1834  are 
these : — 

The  annexation  of  Texas  in  1845. 

The  war  with  Mexico  in  1846,  leading  to  the  enlarge- 
ment of  the  United  States  by  the  vast  territories  which 
are  now  California,  Nevada,  Utah,  Idaho,  Arizona,  and 
New  Mexico. 

The  making  of  railways  over  the  whole  country,  cul- 
minating with  the  completion  of  four  or  five  great  Trans- 
Continental  roads  (the  first  in  1869). 

The  establishment  of  lines  of  swift  ocean  steamers  be- 
tween America  and  Europe. 


348  HAMILTON  AND  TOCQUEVILLE 

The  immigration  from  Ireland  (immensely  increased 
after  the  famine  of  1846),  and  from  Germany  (beginning 
somewhat  later),  and  from  Scandinavia,  Austria-Hun- 
gary, and  Russia  (later  still). 

The  War  of  Secession,  1861-65 ;  together  with  the  ex- 
tinction of  Slavery. 

The  laying  of  submarine  cables  to  Europe,  and  the 
extension  of  telegraphic  communication  over  the  whole 
Union. 

The  settlement  of  the  Alabama  claims,  an  event 
scarcely  less  important  in  American  history  than  in 
English,  because  it  greatly  diminished  the  likelihood  of 
a  war  between  the  two  countries.  In  Tocqueville's  time 
the  hatred  of  Americans  to  England  was  rancorous. 

The  growth  of  great  cities.  In  1830,  only  two  had  a 
population  exceeding  100,000.  There  are  now  (census 
of  1900)  thirty-eight  which  exceed  that  population  1. 

The  growth  of  great  fortunes,  and  of  wealthy  and 
powerful  trading  corporations ;  the  extension  of  mining, 
especially  silver  and  gold  mining;  the  stupendous  de- 
velopment of  speculation,  not  to  say  gambling,  in  stocks 
and  produce. 

The  growth  of  the  universities  and  of  many  kindred 
literary  and  scientific  institutions. 

The  war  with  Spain  in  1898,  and  consequent  annexa- 
tion of  Hawaii  (which  might  probably  not  have  been 
taken  but  for  naval  needs  supposed  to  have  been  dis- 
closed by  the  war),  of  Puerto  Rico,  and  of  the  Philippine 
Isles. 

These  are  events  which  have  told  directly  or  indirectly 
upon  politics.  I  go  on  to  enumerate  the  political 
changes  themselves  of  the  same  sixty-seven  years. 

Democratization  of  State  Constitutions,  total  aboli- 
tion of  property  qualifications,  choice  of  judges  (in  most 
States)  by  popular  vote  and  for  terms  of  years,  restric- 

1  In  1790  there  were  only  six  cities  with  populations  of  at  least  8,000.  There  are 
now  545.  The  percentage  of  urban  to  rural  population  (taking  urban  as  that  of  a 
city  of  8,000)  was  then  3.4  and  is  now  33.1. 


HAMILTON  AND  TOCQUEVILLE  349 

tions  on  the  power  of  State  Legislatures,  more  frequent 
use  of  the  popular  vote  or  so-called  Referendum1. 

Development  of  the  Spoils  System,  consequent  de- 
gradation of  the  increasingly  large  and  important  civil 
service,  both  Federal,  State,  and  Municipal. 

Perfection  and  hierarchical  consolidation,  on  nomi- 
nally representative  but  really  oligarchic  lines,  of  party 
organizations ;  consequent  growth  of  Rings  and  Bosses, 
and  demoralization  of  city  government. 

Enfranchisement  of  the  negroes  through  amendments 
to  the  Constitution. 

Intensification  of  National  (as  opposed  to  State)  sen- 
timent consequent  on  the  War  of  Secession;  passion 
for  the  national  flag;  rejection  of  the  dogmas  of  State 
sovereignty  and  right  of  nullification. 

Increased  importance  of  currency  and  other  financial 
problems :  emergence  of  industrial  questions  as  bases 
for  party  organization :  efforts  to  found  a  Labour  Party 
and  a  '  People's  Party/ 

To  these  I  add,  as  powerfully  affecting  politics,  the 
development  not  only  of  literary,  scientific  and  historical 
studies,  but  in  particular  of  a  new  school  of  publicists, 
who  discuss  constitutional  and  economic  questions  in  a 
philosophic  spirit;  closer  intellectual  relations  with  Eu- 
rope, and  particularly  with  England  and  Germany;  re- 
sort of  American  students  to  German  Universities;  in- 
creased interest  of  the  best  class  of  citizens  in  politics; 
improved  literary  quality  of  the  newspapers  and  of  peri- 
odicals (political  and  semi-political)  generally;  growth 
of  a  critical  and  sceptical  spirit  in  matters  of  religion 
and  philosophy;  diminished  political  influence  of  the 
clergy. 

We  may  now  ask  which  of  Tocqueville's  observations 
have  ceased  to  be  true,  which  of  his  predictions  falsified. 
I  follow  the  order  in  which  they  were  presented  in  the 
last  section. 

1  Especially  in  the  form  of  the  amendment  of  particular  provisions  of  State  Con- 
stitutions. 


350  HAMILTON  AND   TOCQUEVILLE 

Although  the  powers  of  the  several  States  remain  in 
point  of  law  precisely  what  they  were  (except  as  regards 
the  Constitutional  amendments  presently  to  be  noticed) 
and  the  citizen  depends  as  much  now  as  then  upon  the 
State  in  all  that  relates  to  person  and  property,  to  the 
conduct  of  family  and  commercial  relations,  the  National 
or  Federal  Government  has  become  more  important  to 
him  than  it  was  then.  He  watches  its  proceedings  more 
closely,  and,  of  course,  thanks  to  the  telegraph,  knows 
them  sooner  and  more  fully.  His  patriotism  is  far  more 
national,  and  in  case  of  a  conflict  between  one  or  more 
States  and  the  Federal  power,  the  sympathies  of  the 
other  States  would  probably  be  with  the  latter. 

Local  government  has  been  maintained  in  its  com- 
pleteness, but  it  seems  to  excite  less  interest  among  the 
people.  In  the  larger  cities  it  has  fallen  into  the  hands 
of  professional  politicians,  who  have  perverted  it  into  a 
grasping  and  sordid  oligarchy. 

There  is  still,  as  compared  with  Continental  Europe, 
little  '  administration/  though  more  than  in  Tocque- 
ville's  time.  But  the  influence  of  Federal  legislation  on 
the  business  of  the  country  is  far  greater  than  it  was,  for 
the  tariff  and  the  currency,  matters  of  increased  conse- 
quence ever  since  the  war,  are  in  its  hands. 

The  dignity  of  the  judicial  bench  has  in  most  States 
suffered  seriously  from  the  system  of  popular  election 
for  comparatively  short  terms.  In  those  States  where 
nomination  by  the  Executive  has  been  retained,  and  in 
the  case  of  the  Federal  Judges  (nominated  by  the  Presi- 
dent), the  position  is  perhaps  the  highest  permanent 
one  open  to  a  citizen. 

The  President's  authority  received  a  portentous  en- 
largement during  the  War  of  Secession,  and  although 
it  has  now  returned  to  its  normal  condition,  the  sense 
of  its  importance  has  survived.  His  election  is  contested 
with  increasing  excitement,  for  his  immense  patronage 
and  the  magnitude  of  the  issues  he  may  influence  by  his 
veto  power  give  individuals  and  parties  the  strongest 


HAMILTON  AND  TOCQUEVILLE  361 

grounds  for  hope  and  fear.  Experience  has,  on  the 
whole,  confirmed  the  view  that  the  re-eligibility  of  an 
acting  President  (i.e.  the  power  of  electing  him  for  an 
immediately  succeeding  term)  might  well  be  dispensed 
with. 

The  credit  of  the  Supreme  Court  suffered  somewhat 
from  its  pro-slavery  decisions  just  before  the  war,  and 
may  possibly  have  suffered  slightly  since  in  respect  of 
its  treatment  of  the  Legal  Tender  question.  Neverthe- 
less it  remains  respected  and  influential. 

The  State  Constitutions,  nearly  all  of  which  have  been 
re-enacted  or  largely  amended  since  1834,  remain  in- 
ferior to  the  Federal  Constitution,  and  the  State  legisla- 
tures are,  of  course  (possibly  with  a  very  few  excep- 
tions in  the  New  England  States),  still  more  inferior  to 
Congress. 

Two  great  parties  reappeared  immediately  after 
Tocqueville  wrote,  and  except  for  a  brief  interval  be- 
fore the  Civil  War  when  the  Whig  party  had  practically 
expired  before  its  successor  and  representative  the  Re- 
publican party  had  come  to  maturity,  they  have  con- 
tinued to  divide  the  country,  making  minor  parties  of 
slight  consequence.  Now  and  then  an  attempt  is  made 
to  start  a  new  party  as  a  national  organization,  but  it 
rarely  becomes  strong  enough  to  maintain  itself.  The 
rich  and  educated  renewed  their  interest  in  politics  under 
the  impulse  of  the  Slavery  and  Secession  struggle. 
After  a  subsequent  interval  of  apathy  they  seem  to  be 
again  returning  to  public  life.  The  secret  murmurs 
against  democracy,  whereof  Tocqueville  speaks,  are 
confined  to  a  handful  of  fashionable  exquisites  less  self- 
complacent  now  than  they  were  in  the  days  when  they 
learnt  luxury  and  contempt  for  the  people  in  the  Paris 
of  Louis  Napoleon. 

Although  newspapers  are  better  written  than  formerly 
and  those  of  the  great  cities  travel  further  over  the  coun- 
try, the  multitude  of  discordant  voices  still  prevents  the 
people  from  being  enslaved  by  the  press,  which  however 


352  HAMILTON  AND   TOCQUEVILLE 

shows  an  alarming  capacity  for  exciting  them.  The 
habit  of  association  by  voluntary  societies  maintains 
itself. 

The  defects  of  the  professional  politicians,  a  term 
which  now  more  precisely  describes  those  whom 
Tocqueville  calls  by  the  inappropriate  European  name 
of '  the  governors/  continue  at  least  as  marked  as  in  his 
time. 

So,  too,  the  House  of  Representatives  continues  less 
influential  than  the  Senate,  but  for  other  reasons  than 
those  which  Tocqueville  assigns,  and  to  a  less  degree 
than  he  describes.  The  Senate  has  not,  since  1880,  main- 
tained the  character  he  gives  it;  and  the  fact  that  it  is 
still  chosen  in  the  way  which  he  commended  shows  that 
the  merits  he  ascribed  to  it  were  not  due  to  its  mode  of 
choice.  Indeed  in  the  judgement  of  most  thoughtful 
men,  popular  election  in  the  States  would  give  a  better 
Senate  than  election  by  the  State  Legislatures  now  does. 

American  magistrates  never  did  in  general  enjoy  the 
arbitrary  power  Tocqueville  ascribes  to  them.  They  as- 
suredly do  not  enjoy  it  now,  but  in  municipalities  there 
is  a  growing  tendency  to  concentrate  power,  especially 
the  appointing  power,  in  the  hands  of  one  or  a  few  offi- 
cers in  order  that  the  people  may  have  some  one  person 
on  whom  responsibility  can  be  fixed.  Such  power  is 
sometimes  very  wide,  but  it  cannot  be  called  arbitrary. 
A  few  minor  offices  are  unsalaried;  the  salaries  of  the 
greater  ones  have  been  raised,  particularly  in  the  older 
States. 

The  methods  of  administration,  especially  of  Federal 
administration,  have  been  much  improved,  but  are  still 
behind  those  of  the  most  advanced  European  countries, 
one  or  two  departments  excepted. 

Government  is  far  from  economical.  The  war  of  the 
Rebellion  was  conducted  in  the  most  lavish  way :  the 
high  protective  tariff  raises  a  vast  revenue,  and  direct 
local  taxation  takes  more  from  the  citizen  than  in  most 
European  countries.  An  enormous  sum  is  spent  upon 


HAMILTON  AND   TOCQUEVILLE  353 

pensions  to  persons  who  purport  to  have  served  in  the 
Northern  armies  during  the  Civil  War  l. 

Congress  does  not  pass  many  public  statutes,  nor  do 
they  greatly  alter  ordinary  law  within  the  sphere  open 
to  federal  legislation.  Many  legislative  experiments  are 
tried  in  the  newer  States,  but  the  ordinary  private  law 
is  in  no  such  condition  of  mutability  as  Tocqueville  de- 
scribes. The  law  of  England  suffered  more  changes  be- 
tween 1868  and  1885  than  either  the  common  or  statute 
law  of  the  older  States  of  the  Union. 

The  respect  for  the  rights  of  others,  for  the  regular 
course  of  legal  process,  for  the  civil  magistrate,  remains 
strong;  nor  have  the  rich  (although  of  late  years  more 
threatened)  seriously  begun  to  apprehend  any  attacks 
on  them,  otherwise  than  as  stockholders  in  great  railway 
and  other  corporations. 

The  tyranny  of  the  majority  is  not  a  serious  evil  in 
the  America  of  to-day,  though  people  still  sometimes 
profess  alarm  at  it.  It  cannot  act  through  a  State  legis- 
lature so  much  as  it  may  have  done  in  Tocqueville's 
days,  for  the  wings  of  these  bodies  have  been  effectively 
clipped  by  the  newer  State  constitutions.  Faint  are  the 
traces  which  remain  of  that  intolerance  of  heterodoxy 
in  politics,  religion  or  social  views  whereon  he  dilates  2. 
Politicians  on  the  stump  still  flatter  the  crowd,  but  many 
home  truths  are  told  to  it  nevertheless  in  other  ways  and 
places,  and  the  man  who  ventures  to  tell  them  need  no 
longer  fear  social  proscription  (at  least  in  time  of  peace) 
in  the  Northern  or  Western  States,  perhaps  not  even  in 
the  Southern. 

The  Republic  came  scatheless  out  of  a  terrible  civil 
war,  and  although  the  laurels  of  the  general  who  con- 
cluded that  war  twice  secured  for  him  the  Presidency; 
they  did  not  make  his  influence  dangerous  to  freedom. 

1  In  1892  the  expenditure  on  this  head  was  $155,000,000 ;  in  1901  it  was  estimated 
at  $142,000,000. 

2  Competent  American  observers  in  Tocqueville's  own  time  thought  he  greatly 
exaggerated  this  danger.    See  a  letter  from  Jared  Sparks  printed  in  Professor 
Herbert  B.  Adams'  interesting  monograph  Jared  Sparks  and  Alexis  de  Tocgue- 
ville^  in  Johns  Hopkins  University  Studies,  1898. 


354  HAMILTON  AND  TOCQUEVILLE 

There  is  indeed  no  great  capital,  but  there  are  cities 
greater  than  most  European  capitals,  and  the  Republic 
has  not  been  imperilled  by  their  growth.  The  influence 
of  the  clergy  on  public  affairs  has  declined :  whether  or 
no  that  of  religion  has  also  been  weakened  it  is  more  dif- 
ficult to  say.  But  all  Americans  are  still  agreed  that  re- 
ligion gains  by  its  entire  detachment  from  the  State. 

The  negro  problem  remains,  but  it  has  passed  into 
a  new  and  for  the  moment  less  threatening  phase. 
Neither  Tocqueville  nor  any  one  else  then  living  could 
have  foreseen  that  manumission  would  come  as  a  war 
measure,  and  be  followed  by  the  grant  of  political  rights. 
It  is  no  impeachment  of  his  judgement  that  he  omitted 
to  contemplate  a  state  of  things  in  which  the  blacks  have 
been  made  politically  the  equals  of  the  whites,  while  in- 
ferior in  most  other  respects,  and  destined,  apparently, 
to  remain  wholly  separate  from  them.  He  was  right  in 
perceiving  that  fusion  was  not  possible,  and  that  libera- 
tion would  not  solve  the  problem,  because  it  would  not 
make  the  liberated  fit  for  citizenship.  Fit — that  is  to 
say,  as  fit  as  a  considerable  part  of  the  white  population 
— they  will  probably  in  the  long  run  become,  but  even 
then  the  social  problem  will  remain.  His  remark  that 
the  repulsion  between  the  races  in  the  South  would  pro- 
bably be  greater  under  freedom  than  under  slavery  has 
so  far  been  strikingly  verified  by  the  result. 

All  the  forces  that  made  for  the  maintenance  of  the 
Federal  Union  are  now  stronger  than  they  were  then, 
while  the  chief  force  that  opposed  it,  viz.,  the  difference 
of  character  and  habits  between  North  and  South, 
largely  produced  by  the  existence  of  slavery,  tends  to 
vanish.  Nor  does  the  growth  of  the  Union  make  the 
retention  of  its  parts  in  one  body  more  difficult.  On  the 
contrary,  the  United  States  is  a  smaller  country  now 
when  it  stretches  from  the  Bay  of  Fundy  to  the  Gulf  of 
California,  with  its  seventy-six  millions  of  people,  than 
it  was  then  with  its  thirteen  millions,  just  as  the  civilized 
world  was  larger  in  the  time  of  Herodotus  than  it  is  now, 


HAMILTON  AND   TOCQUEVILLE  355 

for  it  took  twice  as  many  months  to  travel  from  Perse- 
polis  or  the  Caspian  Sea  to  the  Pillars  of  Hercules  as 
it  does  now  to  circumnavigate  the  globe,  one  was  obliged 
to  use  a  greater  number  of  languages,  and  the  journey 
was  incomparably  more  dangerous.  Before  steamboats 
plied  on  rivers,  and  trains  ran  on  railways,  three  or  four 
weeks  at  least  were  consumed  in  reaching  Missouri  from 
Maine.  Now  one  goes  in  six  days  of  easy  travelling 
right  across  the  continent. 

Nor  has  the  increased  number  of  States  bred  more 
dissensions.  The  forty-five  States  of  to-day  are  not  as 
Tocqueville  assumes,  and  this  is  the  error  which  vitiates 
his  reasonings,  forty-five  nations.  The  differences  in 
their  size  and  wealth  have  become  greater,  but  they  work 
more  harmoniously  together  than  ever  heretofore,  be- 
cause neither  the  lines  which  divide  parties  nor  the  sub- 
stantial issues  which  affect  men's  minds  coincide  with 
State  boundaries.  The  Western  States  are  now,  so  far 
as  population  goes,  the  dominant  section  of  the  Union, 
and  become  daily  more  so.  But  their  interests  link 
them  more  closely  than  ever  to  the  North  Atlantic 
States,  through  which  their  products  pass  to  Europe, 
and  the  notion  once  entertained  of  moving  the  capital 
from  Washington  to  the  Mississippi  valley  has  been 
quietly  dropped. 

VIII.  CONCLUDING  SUMMARY. 

Before  bidding  farewell  to  our  philosopher,  let  us 
summarize  his  conclusions. 

He  sees  in  the  United  States  by  far  the  most  success- 
ful and  durable  form  of  democratic  government  that  has 
yet  appeared  in  the  world. 

Its  merits  are  the  unequalled  measure  of  freedom, 
freedom  of  action,  but  not  of  thought,  which  it  secures 
to  the  ordinary  citizen,  the  material  and  social  benefits 
it  confers  on  him,  the  stimulus  it  gives  to  all  his  prac- 
tical faculties. 


356  HAMILTON  AND   TOCQUEVILLE 

These  benefits  are  likely  to  be  permanent,  for  they 
rest  upon  the  assured  permanence  of 

Social  equality ; 

Local  self-government ; 

Republican  institutions ; 

Widely  diffused  education. 

It  is  true  that  these  benefits  would  not  have  been  at- 
tained so  quickly  nor  in  such  ample  measure  but  for  the 
extraordinary  natural  advantages  of  the  New  World. 
Nevertheless,  these  natural  advantages  are  but  subsidi- 
ary causes.  The  character  of  the  people,  trained  to  free- 
dom by  experience  and  by  religion,  is  the  chief  cause, 
their  institutions  the  second,  their  material  conditions 
only  the  third ;  for  what  have  the  Spaniards  made  of  like 
conditions  in  Central  and  South  America 1  ? 

Nevertheless,  the  horizon  is  not  free  from  clouds. 

What  are  these  clouds  ? 

Besides  slavery  and  the  existence  of  a  vast  negro 
population  they  are — 

The  conceit  and  ignorance  of  the  masses,  perpetually 
flattered  by  their  leaders,  and  therefore  slow  to  correct 
their  faults. 

The  withdrawal  from  politics  of  the  rich,  and  inferior 
tone  of '  the  governors/  i.e.  the  politicians. 

The  tyranny  of  the  majority,  which  enslaves  not  only 
the  legislatures,  but  individual  thought  and  speech, 
checking  literary  progress,  and  preventing  the  emer- 
gence of  great  men. 

The  concentration  of  power  in  the  legislatures  (Fede- 
ral and  State),  which  weakens  the  Executive,  and  makes 
all  laws  unstable. 

The  probable  dissolution  of  the  Federal  Union,  either 
by  the  secession  of  recalcitrant  States  or  by  the  slow  de- 
cline of  Federal  authority. 

There  is  therefore  warning  for  France  in  the  example 

1  The  [conditions  of  most  parts  of  the  tropical  regions  of  South  and  Central 
America  are  in  reality  quite  different  from  those  of  the  American  Union  taken  as 
a  whole. 


HAMILTON  AND   TOCQUEVILLE  357 

of  America.  But  there  is  also  encouragement — and  the 
encouragement  is  greater  than  the  warning. 

Of  the  clouds  which  Tocqueville  saw,  one  rose  till  it 
covered  the  whole  sky,  broke  in  a  thunderstorm,  and 
disappeared.  Others  have  silently  melted  into  the  blue. 
Some  still  hang  on  the  horizon,  darkening  parts  of  the 
landscape. 

Let  us  cast  one  glance  back  at  the  course  which 
events  have  actually  taken  as  compared  with  that  which 
Hamilton  first,  and  Tocqueville  afterwards,  expected. 

The  Republic  fared  far  otherwise  than  as  Hamilton 
and  his  friends  either  hoped  or  feared.  In  this  there  is 
nothing  to  impeach  their  wisdom.  They  saw  the  dangers 
of  their  own  time,  and  like  wise  and  patriotic  men  pro- 
vided the  best  remedies  which  existing  conditions  per- 
mitted. Some  dangers  they  overcame  so  completely, 
particularly  the  financial  misdoings  of  State  legislatures, 
that  these  have  now  passed  out  of  memory.  They  could 
not  foresee  what  the  power  of  money  would  become,  be- 
cause there  was  then  little  money  in  the  country.  They 
could  not  foresee  the  astonishing  development  of  party 
machinery,  because  it  is  a  perfectly  new  thing  in  the  his- 
tory of  the  world:  and  human  imagination  never  does 
more,  at  any  rate  in  the  field  of  politics  and  sociology, 
than  body  forth  things  a  little  bigger  than,  or  in  some 
other  wise  a  little  varying  from,  what  they  have  been 
before.  It  cannot  create  something  out  of  nothing. 
Least  of  all  could  they  divine  what  the  results  would  be 
of  the  coexistence  of  the  money  power  and  the  party  ma- 
chine. Nor  did  even  Tocqueville,  writing  half  a  century 
later,  when  wealth  had  already  appeared  and  the  party 
machine  was  in  places  beginning  to  work,  perceive  what 
both  had  in  store. 

How  would  Tocqueville  amend  his  criticisms  were  he 
surveying  the  phenomena  of  to-day? 

He  would  add  to  his  praise  of  the  United  States  that 
its  people  re-established  their  government  on  firm  foun- 
dations after  a  frightful  civil  war,  that  their  army  went 


358  HAMILTON  AND   TOCQUEVILLE 

back  to  its  peaceful  occupations,  that  they  paid  off  their 
debt,  that  they  have  continued  to  secure  a  free  field  for 
an  unparalleled  industrial  development  and  to  maintain 
a  hitherto  unattained  standard  of  comfort,  that  the  level 
of  knowledge  and  intellectual  culture  has  risen  enor- 
mously. He  would  admit  that  he  had  overrated  the 
dangers  to  be  feared  from  a  tyrannical  majority  and  had 
underrated  the  strength  of  the  Union.  But  he  would 
stand  aghast,  as  indeed  all  the  best  citizens  in  the  United 
States  do  now,  at  the  mismanagement  and  corruption  of 
city  governments.  He  would  perceive  that  the  party 
organizations  have  now  become  the  controlling  force  in 
the  country,  more  important  than  the  Legislature  or 
the  Executive.  He  would  recognize  the  evils  incident 
to  the  habit  of  regarding  public  office  as  a  means  of  pri- 
vate advantage  to  its  holder  and  the  bestowal  of  it  as  a 
reward  for  party  services.  And  he  would,  while  gladly 
owning  that  the  older  forms  of  faction  had  ceased  to  be 
alarming,  note  a  new  development  which  the  spirit  of 
faction  has  taken  in  the  tendency  to  look  at  and  deal 
with  both  legislation  and  foreign  affairs  from  the  point 
of  view  of  party  advantage.  Want  of  foresight  or  in- 
sight in  those  who  direct  the  affairs  of  a  mighty  nation 
is  at  all  times  a  misfortune:  but  when  foresight  and  in- 
sight are  set  aside  for  the  sake  of  some  transitory  party 
gain,  the  results  may  be  even  more  serious. 

This,  however,  is  a  tendency  inherent  in  all  schemes 
of  government  by  party.  It  is  familiar  and  formidable 
in  European  countries  also. 


VII 

TWO     SOUTH    AFRICAN    CONSTI- 
TUTIONS ' 


I.  THE  CONDITIONS  UNDER  WHICH    THESE   CONSTI- 
TUTIONS AROSE. 

THE  old  Greek  saying,  *  Africa  is  always  bringing 
something  new  V  finds  an  unexpected  application  in  the 
fact  that  there  exist  in  South  Africa  two  Dutch  republics 
possessing  constitutions  diverse  in  type  from  any  of 
those  which  we  find  subsisting  in  other  modern  States. 
The  system  established  by  these  two  South  African  in- 
struments resembles  neither  the  English,  or  so-called 
'  Cabinet,'  system  of  government, — which  has  been  more 
or  less  imitated  by  the  other  free  countries  of  Europe, 
and  has  been  reproduced  in  the  self-governing  British 
colonies, — nor  the  American,  or  so-called  '  Presiden- 
tial,' system,  as  it  exists  in  the  United  States  and  the 
several  States  of  the  American  Union.  And  although 
it  bears  some  resemblance  to  the  constitution  of  the 
Swiss  Confederation  and  to  the  constitutions  of  the 
cantons  of  Switzerland,  this  resemblance  is  not  a  close 

1  This  Essay  was  composed  early  in  1896,  and  describes  the  Constitutions  of  the 
Orange  Free  State  and  South  African  Republic  as  they  stood  in  December  1895,  the 
month  when  the  fatal  invasion  of  the  latter  Republic  by  the  police  of  the  British  S. 
Africa  Company  took  place.     I  have  left  it,  for  obvious  reasons,  substantially  un- 
changed, save  that  here  and  there  I  have  corrected  what  seemed  to  be  errors,  have 
added  one  or  two  references  to  recent  events,  and  have  explained  some  constitu- 
tional points  with  more  fullness.    In  its  original  form,  the  Essay  appeared  in  the 
Forum  in  April  1896. 

2  Ae'yerai  TIS  irapoifxta  on  ael  </>f'pe<.  At/3uij  rt  KOUVOV.     Arist.  Hist.  Anim.  viii.  28. 


360  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

one,  and  is  evidently  not  due  to  conscious  imitation,  but 
to  a  certain  similarity  of  phenomena  suggesting  similar 
devices.  The  constitutions  of  these  two  Dutch  republics 
are  the  product,  the  pure  and  original  product,  of  Afri- 
can conditions,  having  drawn  comparatively  little  from 
the  experience  of  older  countries,  or  from  the  models 
their  schemes  of  government  afford.  Moreover,  these 
South  African  constitutions  grew  up  upon  a  perfectly 
virgin  soil.  There  was  no  pre-existing  political  organi- 
zation, such  as  the  old  feudal  polities  supplied  in  some 
countries  of  Europe,  out  of  which  these  Republics  could 
develop  themselves.  There  were  no  charters  or  guilds 
or  companies,  such  as  those  which  gave  their  earliest 
form  to  the  governments  of  several  of  the  older  Ameri- 
can States.  Nor  was  there  any  home  pattern  to  be 
copied,  as  the  British  colonies  have,  by  the  aid  of  sta- 
tutes of  the  Imperial  Parliament,  copied  the  constitution 
of  the  United  Kingdom. 

This  is  one  of  the  most  interesting  features  of  these 
Constitutions.  They  are  not  specifically  Dutch.  Neither 
are  they  English.  Nothing  is  more  uncommon  in  his- 
tory than  an  institution  starting  de  novo,  instead  of  being 
naturally  evolved  out  of  some  earlier  form.  The  simple 
farmers  who  drafted  the  documents  which  I  propose  to 
describe,  knew  little  about  the  systems  either  of  Europe 
or  of  America.  Few  possessed  any  historical,  still  fewer 
any  legal,  knowledge.  Many  were  uneducated  men, 
though  with  plenty  of  rough  sense  and  mother  wit. 
They  would  have  liked  to  get  on  without  any  govern- 
ment, and  were  resolved  to  have  as  little  as  possible. 
Circumstances,  however,  compelled  them  to  form  some 
sort  of  organization ;  and  in  setting  to  work  to  form  one, 
with  little  except  their  recollections  of  the  local  arrange- 
ments of  Cape  Colony  to  guide  or  to  assist  them,  they 
came  as  near  as  any  set  of  men  ever  have  come  to  the 
situation  which  philosophers  have  so  often  imagined, 
but  which  has  so  rarely  in  fact  occurred — that  of  free  and 
independent  persons  uniting  in  an  absolutely  new  social 


T\YO  SOUTH  AFRICAN  CONSTITUTIONS  361 

compact  for  mutual  help  and  defence,  and  thereby  creat- 
ing a  government  whose  authority  has  had,  and  can  have 
had,  no  origin  save  in  the  consent  of  the  governed. 

A  few  preliminary  words  are  needed  to  explain  the 
circumstances  under  which  the  constitutions  of  the 
Orange  Free  State  and  of  the  South  African  Republic 
(commonly  called  the  Transvaal)  were  drawn  up. 

As  early  as  1820  a  certain  number  of  farmers,  mostly 
of  Dutch  origin,  living  in  the  north-eastern  part  of  Cape 
Colony,  were  in  the  habit  of  driving  their  flocks  and 
herds  into  the  wilderness  north  of  the  Orange  River, 
where  they  found  good  fresh  pasture  during  and  after 
the  summer  rains.  About  1828  a  few  of  these  farmers 
established  themselves  permanently  there,  still  of  course 
remaining  subjects  of  the  British  Crown,  which  had 
acquired  Cape  Colony  first  by  conquest  and  then  by  pur- 
chase in  1806  and  1814.  In  1835-6,  however,  a  much 
greater  number  of  farmers  migrated  from  the  colony; 
some  in  larger,  some  in  smaller  bodies.  They  had  vari- 
ous grievances  against  the  British  Government,  some 
dating  back  as  far  as  1815:  and  they  desired  to  live  by 
themselves  in  their  own  way,  untroubled  by  the  Gover- 
nors whom  it  sent  to  rule  the  country1.  Between  1835 
and  1838  a  considerable  number  of  these  emigrants 
moved  into  the  country  beyond  the  Orange  River,  some 
remaining  there,  others  pushing  still  further  to  the 
north-east  into  the  hitherto  unknown  regions  beyond 
the  Vaal  River,  while  a  third  body,  perhaps  the  largest, 
moved  down  into  what  was  then  a  thinly  peopled  Kafir 
land,  and  is  now  the  British  colony  of  Natal.  This  is 
not  the  place  in  which  to  relate  the  striking  story  of 
their  battles  with  the  Zulu  king  and  of  their  struggle  with 
the  British  Government  for  the  possession  of  Natal.  It 
is  enough  to  say  that  this  third  body  ultimately  quitted 
Natal  to  join  the  other  emigrants  north  of  the  moun- 

1  A  concise  account  of  these  grievances  and  a  sketch  of  the  subsequent  history 
of  the  emigrants  may  be  found  in  Dr.  Theal's  Story  of  South  Africa  (published  by 
Messrs.  Putnam),  and  in  my  Impressions  of  South  Africa,  chaps,  xi  and  xii.  See 
;alsp  Dr.  Theal's  larger  History  of  the  Boers  in  South  Africa. 


362  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

tains ;  and  that,  after  many  conflicts  between  those  emi- 
grants and  the  native  tribes,  and  some  serious  difficulties 
with  successive  Governors  of  Cape  Colony,  the  British 
Government  finally,  by  a  Convention  signed  at  Sand 
River  in  1852,  recognized  the  independence  of  the  set- 
tlers beyond  the  Vaal  River,  while,  by  a  later  Conven- 
tion signed  at  Bloemfontein  in  1854,  it  renounced  the 
sovereignty  it  had  claimed  over  the  country  between  the 
Orange  River  and  the  Vaal  River,  leaving  the  inhabi- 
tants of  both  these  territories  free  to  settle  their  own 
future  form  of  government  for  themselves. 

These  two  Conventions  are  the  legal  and  formal 
starting-points  of  the  two  republics  in  South  Africa,  and 
from  them  the  history  of  those  republics,  as  self-govern- 
ing states,  recognized  in  the  community  of  nations  by 
international  law,  takes  its  beginning.  The  emigrant 
farmers  had,  however,  already  been  driven  by  the  force 
of  circumstances  to  establish  some  sort  of  government 
among  themselves.  As  early  as  1836  an  assembly  of  one 
of  the  largest  emigrant  groups  then  dwelling  in  the 
Orange  River  Territory,  elected  seven  persons  to  con- 
stitute a  body  with  legislative  and  judicial  power.  In 
1838  the  Natal  emigrants  established  a  Volksraad  (coun- 
cil of  the  people)  which  consisted  of  twenty-four  mem- 
bers, elected  annually,  who  met  every  three  months  and 
had  the  general  direction  of  the  affairs  of  the  commu- 
nity, acting  during  the  intervals  between  the  meetings 
by  a  small  committee  called  the  Commissie  Raad.  All 
important  measures  were,  however,  submitted  to  a 
general  meeting  called  the  Publiek,  in  which  every 
burgher  was  entitled  to  speak  and  vote.  It  was  a  pri- 
mary assembly,  like  the  Old  English  Folk  Mot,  or  the 
Landesgemeinde  of  the  older  Swiss  Cantons.  A  some- 
what similar  system  prevailed  among  the  farmers  settled 
in  the  country  beyond  the  Vaal  River.  They  too  had  a 
Volksraad,  or  sometimes — for  they  were  from  time  to 
time  divided  into  separate  and  practically  independent 
republican  communities — several  Volksraads ;  and  each 


T\VO  SOUTH  AFRICAN  CONSTITUTIONS  363 

district  or  petty  republic  had  a  commandant-general. 
Their  organization  was  really  more  military  than  civil, 
and  the  commandant-general  with  his  Krygsraad  (coun- 
cil of  war),  consisting  of  the  commandants  and  field  cor- 
nets within  the  district,  formed  the  nearest  approach  to 
a  regular  executive.  I  have  unfortunately  been  unable 
to  obtain  proper  materials  for  the  internal  political  his- 
tory, if  such  a  term  can  be  used,  of  these  communities 
before  they  proceeded  to  enact  the  constitutions  to  be 
presently  described,  and  fear  that  such  materials  as  do 
exist  are  very  scanty.  But,  speaking  broadly,  it  may  be 
said  that,  in  all  the  communities  of  the  emigrant  farmers, 
supreme  power  was  deemed  to  be  vested  in  an  assembly 
of  the  whole  male  citizens,  usually  acting  through  a 
council  of  delegates,  and  that  the  permanent  officials 
were  generally  a  magistrate,  called  a  landrost,  in  each 
village,  a  field  cornet  in  each  ward,  and  a  commandant 
in  each  district.  All  these  officials  were  chosen  by  the 
people  l.  In  these  primitive  arrangements  consisted  the 
materials  out  of  which  a  constitutional  government  had 
to  be  built  up. 

From  this  point  the  history  of  the  Orange  River  Ter- 
ritory, which  by  the  Convention  of  1854  was  recognized 
as  the  Orange  Free  State,  and  that  of  the  Transvaal 
Territory  begin  to  diverge.  In  describing  the  constitu- 
tions of  the  republics,  I  take  first  that  of  the  Orange 
Free  State,  because  it  dates  from  1854,  while  the  existing 
constitution  of  the  Transvaal  is  four  years  younger,  hav- 
ing been  adopted  in  1858.  The  former  is  also  by  far  the 
simpler  and  shorter  document. 

When  the  British  Government  in  1854  voluntarily  di- 
vested itself  of  its  rights  over  the  Orange  River  Terri- 
tory, greatly  against  the  will  of  some  of  its  subjects 
there,  the  inhabitants  of  that  Territory  were  estimated 
at  15,000  Europeans,  most  of  them  of  Dutch,  the  rest  of 

1  I  am  indebted  for  most  of  these  facts  regarding  the  early  organization  of  the 
emigrants  to  Dr.  G.  M.  Theal's  History  of  the  Bosrs  in  South  Africa,  a  book  of 
considerable  merit  and  interest,  which,  however,  carries  its  narrative  down  only 
to  1854. 


364  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

British  origin.  (The  number  of  native  Kafirs  was  much 
larger,  but  cannot  now  be  estimated.)  The  great  ma- 
jority were  farmers,  pasturing  their  sheep  and  cattle  on 
large  farms,  but  five  small  villages  already  existed,  one 
of  which,  Bloemfontein,  has  grown  to  be  a  town  of 
5,800  people,  and  is  now  the  capital.  The  Volksraad,  or 
assembly  of  delegates  of  the  people,  framed,  and  on 
April  10,  1854,  enacted,  a  constitution  for  the  new  re- 
public. This  constitution  was  revised  and  amended  in 
1866,  and  again  in  1879,  but  the  main  features  of  the 
original  instrument  remain.  I  proceed  to  deal  with  it 
as  it  now  stands. 

II.  CONSTITUTION  OF  THE  ORANGE  FREE  STATE. 

This  Constitution,  which  is  in  the  Dutch  language,  and 
is  called  De  Constitutie,  is  a  terse  and  straightforward 
document  of  sixty-two  articles,  most  of  which  are  only 
a  few  lines  in  length  1.  It  begins  by  defining  the  qualifi- 
cations for  citizenship  and  the  exercise  of  the  suffrage 
(articles  I  to  4),  and  incidentally  imposes  the  obligation 
of  military  service  on  all  citizens  between  the  ages  of 
sixteen  and  sixty.  Only  whites  can  be  citizens.  New- 
comers may  obtain  citizenship  if  they  have  resided  one 
year  in  the  state  and  have  real  property  to  the  value 
of  at  least  £  150  sterling  ($750),  or  if  they  have  resided 
three  successive  years  and  have  made  a  written  promise 
of  allegiance. 

Articles  5  to  27  deal  with  the  composition  and  func- 
tions of  the  Volksraad,  or  ruling  assembly,  which  is  de- 
clared to  possess  the  supreme  legislative  authority.  It 
consists  of  representatives  (at  present  fifty-eight  in  num- 
ber), one  from  each  of  the  wards  or  Field  Cornetcies, 
and  one  from  the  chief  town  or  village  of  each  of  the  (at 
present  nineteen)  districts.  They  are  elected  for  four 


1  My  thanks  are  due  to  the  distinguished  Chief  Justice  of  the  Free  State  (Mr. 
Melius  de  Villiers)  for  mjuch  information  kindly  furnished  to  me  regarding  this 
Constitution. 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  365 

years,  one-half  retiring  every  two  years.  Twelve  con- 
stitute a  quorum.  Every  citizen  is  eligible  who  has  not 
been  convicted  of  crime  by  a  jury  or  been  declared  a 
bankrupt  or  insolvent,  who  has  attained  the  age  of 
twenty-five  years,  and  who  possesses  fixed  (i.e.  real) 
unmortgaged  property  of  the  value  of  £500  at  least. 

The  Volksraad  is  to  meet  annually  in  May,  and  may 
be  summoned  to  an  extra  session  by  its  chairman,  as 
also  by  the  President  (§  34),  or  by  the  President  and  the 
Executive  Council  (§  45). 

The  Volksraad  has  power  to  depose  the  President  if 
insolvent  or  convicted  of  crime,  and  may  also  itself  try 
him  on  a  charge  of  treason,  bribery,  or  other  grave 
offence ;  but  the  whole  Volksraad  must  be  present  or 
have  been  duly  summoned,  and  a  majority  of  three  to 
one  is  required  for  conviction.  The  sentence  shall  in 
these  cases  extend  only  to  deposition  from  office  and 
disqualification  for  public  service  in  future,  a  President 
so  deposed  being  liable  to  further  criminal  proceedings 
before  the  regular  courts. 

The  votes  of  members  of  the  Volksraad  shall  be  re- 
corded on  a  demand  by  one-fifth  of  those  present.  The 
sittings  are  to  be  public,  save  where  a  special  cause  for 
a  secret  sitting  exists. 

The  Volksraad  shall  make  no  law  restricting  the  right 
of  public  meeting  and  petition. 

It  shall  concern  itself  with  the  promotion  of  religion 
and  education. 

It  shall  promote  and  support  the  Dutch  Reformed 
Church. 

It  may  alter  the  constitution,  but  only  by  a  majority 
of  three-fifths  of  the  votes  in  two  consecutive  annual 
sessions. 

It  has  power  to  regulate  the  administration  and 
finances,  levy  taxes,  borrow  money,  and  provide  for 
the  public  defence. 

Articles  28  to  41  deal  with  the  choice  and  functions 
of  the  President  of  the  state. 


366  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

He  is  to  be  elected  by  the  whole  body  of  citizens, 
the  Volksraad,  however,  recommending  one  or  more 
persons  to  the  citizens  1. 

He  is  chosen  for  five  years  and  is  re-eligible. 

He  is  the  head  of  the  executive,  charged  with  the 
supervision  and  regulation  of  the  administrative  depart- 
ments and  public  service  generally,  and  is  responsible 
to  the  Volksraad,  his  acts  being  subject  to  an  appeal  to 
that  body.  He  is  to  report  annually  to  the  Volksraad, 
to  assist  its  deliberations  by  his  advice,  but  without  the 
right  of  voting,  and,  if  necessary,  to  propose  bills.  He 
makes  appointments  to  public  offices,  and  may  fill  va- 
cancies that  occur  when  the  Volksraad  is  not  sitting,  but 
his  appointments  require  its  confirmation.  (Such  con- 
firmation has  been  hardly  ever,  if  ever,  refused.)  He 
may  also  suspend  public  functionaries,  but  dismissal  ap- 
pears to  require  the  consent  of  the  Volksraad. 

Articles  42  to  46  deal  with  the  Executive  Council.  It 
consists  of  five  members,  besides  the  State  President, 
who  is  ex-officio  chairman,  with  a  deciding  or  overriding 
vote  (bestissende  stem).  Of  these  five,  one  is  the  landrost 
(magistrate)  of  Bloemfontein,  another  the  State  Secre- 
tary, both  these  officials  being  appointed  by  the  Presi- 
dent and  confirmed  by  the  Volksraad;  the  remaining 
three  are  elected  by  the  Volksraad.  This  Council  ad- 
vises the  President,  but  does  not  control  his  action  in 
matters  which  the  Constitution  entrusts  to  him,  reports 
its  proceedings  annually  to  the  Volksraad,  and  has  the 
rights,  in  conjunction  with  the  President,  of  pardoning 
offenders  and  of  declaring  martial  law. 

Regarding  the  judicial  power  only  two  provisions  re- 
quire mention.  Article  48  declares  this  power  to  be  ex- 
clusively exercisable  by  the  courts  of  law  established  by 
law.  Article  49  secures  trial  by  jury  in  all  criminal 
causes  in  the  superior  courts. 

Local  government  and  military  organization,  subjects 

1  In  practice,  the  recommendation  of  the  majority  of  the  Volksraad  is  lookeu 
upon  as  likely  to  ensure  the  election  of  the  person  so  recommended. 


7'iro   SOUTH  AFRICAN  CONSTITUTIONS  367 

intimately  connected  in  Dutch  South  Africa,  occupy  arti- 
cles 50  to  56  inclusive. 

A  field  cornet  is  elected  by  the  citizens  of  each  ward, 
a  field  commandant  by  those  of  each  district,  in  both 
cases  from  among  themselves  l.  In  case  of  war,  all  the 
commandants  and  cornets  taken  together  elect  a  Com- 
mandant-General, who  thereupon  receives  his  instruc- 
tions from  the  President.  Those  who  elected  him  may, 
with  the  consent  of  the  President,  dismiss  him  and 
choose  another.  Every  field  cornet  and  commandant 
must  have  landed  property,  the  latter  to  the  value  of 
£200  at  least. 

Article  57  declares  Roman  Dutch  law  to  be  the  com- 
mon law  of  the  state  2. 

Articles  58  and  59  declare  that  the  law  shall  be  ad- 
ministered without  respect  of  persons  and  that  every 
resident  shall  be  held  bound  to  obey  it,  while  articles  60, 
61,  and  62  guarantee  the  rights  of  property,  of  personal 
liberty,  and  of  press  freedom. 

It  will  be  convenient  to  defer  general  criticisms  upon 
the  frame  of  government  established  by  this  Constitu- 
tion till  we  have  examined  that  of  the  sister  republic 
of  the  Transvaal,  which  agrees  with  it  in  many  re- 
spects. But  we  may  here  briefly  note,  before  passing 
further,  a  few  remarkable  features  of  the  present  instru- 
ment. 

1.  It  is  a  Rigid  constitution,  i.e.  one  which  cannot  be 
changed  in  the  same  way  and  by  the  same  authority  as 
that  whereby  the  ordinary  law  is  changed,  but  which 
must  be  changed  in  some  specially  prescribed  form — in 
this  case,  by  a  three-fourths  majority  of  the  Volksraad 
in  two  successive  sessions  3. 

2.  The  body  of  the  people  do  not  come  in  as  a  vot- 


1  In  the  earlier  days  of  Rome  the  army  elected  its  subordinate  officers. 

8  Roman  Dutch  law  is  the  common  law  all  over  South  Africa,  even  in  the  almost 
purely  English  colony  of  Natal  (though  of  course  not  in  Portuguese  or  German 
territory).  It  has  been  largely  affected,  especially  in  the  British  colonies,  by  recent 
legislation. 

3  As  to  Rigid  Constitutions,  see  Essay  III. 


368  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

ing  power,  save  for  the  election  of  the  President  and 
Commandant-General.  All  other  powers,  even  that 
of  amending  the  constitution,  belong  to  the  Volks- 
raad. 

3.  There  is  only  one  legislative  chamber. 

4.  The   President   has   no   veto   on   the   acts   of   the 
legislature. 

5.  The  President  has  the  right  of  sitting  in  and  ad- 
dressing the  legislature. 

6.  The  President's  Council  is  not  of  his  own  choosing, 
but  is  given  him  by  the  legislature. 

7.  The  heads  of  the  executive  departments  sit  neither 
in  the  Council  nor  in  the  legislature. 

8.  The  legislature  may  apparently  reverse  any  and 
every  act  of  the  President,  save  those  (pardon  of  offences 
and  declaration  of  martial  law)  specially  given  to  him 
and  the  Executive  Council. 

American  readers  will  have  noted  for  themselves  some 
few  points  in  this  Constitution  which  have  been  drawn 
from  that  of  the  United  States.  Others  are  said  to  have 
been  suggested  by  the  Constitution  framed  for  the 
French  Republic  in  1848.  Comparatively  few  contro- 
versies upon  the  construction  of  the  Constitution  have 
been  debated  with  any  warmth.  One,  which  gave  rise 
to  a  difference  of  opinion  between  the  Volksraad  and 
the  Supreme  Court  of  the  state,  arose  upon  the  question 
whether  the  Volksraad  has  power  to  punish  a  citizen 
for  contempt  by  committing  him  to  prison  for  a  long 
term,  and  to  direct  the  State  Attorney  to  prosecute  him. 
The  judges  disapproved  what  they  deemed  an  uncon- 
stitutional stretching  of  authority  by  the  legislature. 
Using  the  opportunities  of  influencing  public  opinion 
which  the  delivery  of  charges  to  juries  gave  them,  they 
ultimately  so  affected  the  mind  of  the  people  that  the 
Volksraad  tacitly  retired  from  its  position,  leaving  the 
question  of  right  undetermined. 


SOUTH  AFRICAN  CON8TlTL"J'l<>\x 


III.  CONSTITUTION  OF  THE  SOUTH  AFRICAN  REPUBLIC. 

The  South  African  Republic,  or  Transvaal  State  as 
it  is  popularly  called,  is  ruled  by  a  much  longer,  much 
less  clear,  and  much  less  systematically  arranged  docu- 
ment than  that  established  by  its  sister  commonwealth  1. 
A  considerable  part  of  the  contents  of  this  constitution 
is  indeed  unfit,  as  too  minute,  for  a  fundamental  instru- 
ment of  government ;  and,  whatever  the  intention  of  its 
framers  may  have  been,  it  has  not  in  fact  been  treated 
as  a  fundamental  instrument.  Whether  it  is  really  such, 
in  strict  contemplation  of  law,  is  a  question  often  dis- 
cussed in  professional  circles  in  Pretoria  and  Johannes- 
burg. I  shall  summarize  the  more  important  of  its 
provisions — they  occupy  two  hundred  and  thirty-two 
articles — and  endeavour  therewith  to  present  an  outline 
of  the  frame  of  government  which  they  establish. 

The  Grondwet  (Ground-law)  or  Constitution  was 
drafted  by  a  committee  of  an  assembly  of  delegates  and 
approved  by  the  assembly  itself  in  February,  1858.  It 
is  in  Dutch,  but  has  been  translated  into  English  more 
than  once. 

Article  6  declares  the  territory  of  the  republic  open  to 
every  stranger  who  submits  himself  to  the  laws — a  pro- 
vision noteworthy  in  view  of  recent  events — and  declares 
all  persons  within  the  territory  equally  entitled  to  the 
protection  of  person  and  property. 

Article  8  states,  inter  alia,  that  the  people  '  permit  the 
spread  of  the  Gospel  among  the  heathen,  subject  to 
prescribed  provisions  against  the  practice  of  fraud  and 
deception  ' ;  a  provision  upon  whose  intention  light  is 
thrown  by  the  suspicions  felt  by  the  Boers  of  the  English 
missionaries. 

Article  9  declares  that  '  the  people  will  not  tolerate 

1  I  have  to  thank  my  friend  Mr.  J.  G.  Kotze\  late  Chief  Justice  of  the  South  Afri- 
can Republic,  for  information  kindly  supplied  to  me  regarding  certain  points  in 
this  Constitution. 
24 


370  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

equality  between  coloured  and  white  inhabitants  either 
in  church  or  in  state  V 

Article  10  forbids  slavery  or  dealing  in  slaves. 

Article  19  grants  the  liberty  of  the  press. 

Articles  20  to  23  formerly  declared  that  the  people 
would  maintain  the  principles  of  the  doctrine  of  the 
Dutch  Reformed  Church,  as  fixed  by  the  Synod  of  Dort 
in  1618  and  1619,  that  the  Dutch  Reformed  Church  shall 
be  the  Church  of  the  State,  that  no  persons  shall  be 
elected  to  the  Volksraad  who  are  not  members  of  that 
Church,  that  no  ecclesiastical  authority  shall  be  acknow- 
ledged save  that  of  the  consistories  of  that  Church,  and 
that  no  Roman  Catholic  Churches,  nor  any  Protestant 
Churches  save  those  which  teach  the  doctrine  of  the 
Heidelberg  Catechism,  shall  be  permitted  within  the  re- 
public. But  these  archaic  provisions  were  in  the  revised 
Grondwet  of  1889  reduced  to  a  declaration  that  only 
members  of  a  Protestant  Church  should  be  elected  to 
the  Volksraad  2. 

After  these  general  provisions  we  come  to  the  frame 
of  government.  Legislation  is  committed  to  a  Volks- 
raad, '  the  highest  authority  of  the  state.'  It  is  to  consist 
of  at  least  twelve  members  (the  number  is  at  present 
twenty-four)  who  must  be  over  thirty  years  of  age  and 
possess  landed  property.  Each  district  returns  an  equal 
number  of  members.  Residence  within  the  district  is 
not  required  of  a  candidate.  The  members  were  for- 
merly elected  for  two  years,  and  one-half  retired  annu- 
ally. Their  term  was  afterwards  extended  to  four  years. 
Every  citizen  who  has  reached  the  age  of  twenty-one 
enjoys  the  suffrage  3  (persons  of  colour  are  of  course 

1  The  Boers  are  a  genuinely  religious  people,  and  read  their  Bibles.     But  they 
have  shown  little  regard  to  i  Corinthians  xii.  13  ;  Galatians  iii.  28  ;  and  Colossians 
iii.  IT.    The  same  may  be  said  of  the  people  of  the  Southern  States  of  America; 
and  is  indeed  also  true  of  the  less  religious  English  both  in  South  Africa  and  in  the 
West  Indies. 

2  I  am  informed  that  even  this  restriction  was  abolished  subsequently  to  1895. 

8  The  suffrage  was  by  subsequent  enactments  restricted  as  respects  immigrants 
and  the  sons  of  immigrants ;  and  in  1895  a  person  coming  into  the  country  could  not 
obtain  full  electoral  rights  till  after  a  period  of  twelve  years.  In  July  1899,  three 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  371 

incapable  of  voting  or  of  being  elected).  The  unwork- 
able provision  of  the  old  Grondwet  that '  any  matter  dis- 
cussed shall  be  decided  by  three-fourths  of  the  votes  ' 
was  subsequently  repealed. 

Three  months  are  to  be  given  to  the  people  for  inti- 
mating to  the  Volksraad  their  opinion  on  any  proposed 
law,  '  except  laws  which  admit  of  no  delay '  (§  12),  but 
laws  may  be  discussed  whether  published  three  months 
before  their  introduction  or  introduced  during  the  ses- 
sion of  the  Volksraad  (§  43).  The  sittings  are  to  open 
and  close  with  prayer,  and  are  to  be  public,  unless  the 
chairman  or  the  President  of  the  Executive  Council 
deems  secrecy  necessary. 

If  the  high  court  of  justice  declares  the  President,  or 
any  member  of  the  Executive  Council,  or  the  Command- 
ant-General, unfit  to  fill  his  office,  the  Volksraad  shall 
remove  from  office  the  person  so  declared  unfit  and  shall 
provide  for  filling  the  vacant  office. 

The  administration,  as  well  as  the  proposal,  of  laws 
was  by  the  old  Grondwet  given  to  an  Executive  Council 
(§  13).  The  revised  instrument  vests  it  in  the  State  Presi- 
dent. The  President  is  elected  for  five  years  by  the  citi- 
zens voting  all  over  the  country.  He  must  have  attained 
the  age  of  thirty  and  be  a  member  of  a  Protestant  (for- 
merly of  the  Dutch  Reformed)  Church  (§  56).  He  is 
the  highest  officer  of  the  state,  and  appoints  all  officials. 
All  public  servants,  except  those  who  administer  justice, 
are  subordinate  to  him  and  under  his  supervision.  In 
case  of  his  death,  dismissal,  or  inability  to  act,  his  func- 
tions devolve  on  the  oldest  member  of  the  Executive 
Council  till  a  new  appointment  is  made.  The  Volksraad 
shall  dismiss  him  on  conviction  of  any  serious  offence. 
He  is  to  propose  laws  to  the  Volksraad — '  whether  ema- 
nating from  himself  or  sent  in  to  him  by  the  people  ' — 
and  support  them  in  that  body  either  personally  or 
through  a  member  of  the  Executive  Council.  He  has, 

months  before  the  war  which  broke  out  in  that  year,  the  period  was  shortened  to 
seven  years  owing  to  pressure  by  the  British  Government. 


372  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

however,  no  right  to  vote  in  the  Volksraad.  He  recom- 
mends to  the  Volksraad  persons  for  appointment  to 
public  posts ;  and  may  suspend  public  servants,  saving 
his  responsibility  to  the  Volksraad.  He  submits  an  esti- 
mate of  revenue  and  expenditure,  reports  on  his  own 
action  during  the  past  year  and  on  the  condition  of  the 
republic,  visits  annually  all  towns  and  villages  where  any 
public  office  exists  to  give  due  opportunity  to  the  inhabi- 
tants of  stating  their  wishes. 

The  Executive  Council  consists  of  four  official  mem- 
bers besides  the  President,  namely,  the  State  Secretary, 
the  Commandant-General,  the  Superintendent  of  Native 
Affairs,  and  the  Keeper  of  Minutes  (Notulenhouder),  and 
of  two  other  members.  All  except  the  Commandant- 
General  are  elected  by  the  Volksraad ;  the  Secretary  for 
four  years,  the  two  other  members  for  three  years.  The 
Commandant-General  is  elected  by  the  burghers  of  the 
whole  republic  for  ten  years.  All,  including  the  Presi- 
dent, are  entitled  to  sit,  but  not  to  vote,  in  the  Volksraad. 
The  President  and  Council  carry  on  correspondence 
with  foreign  powers,  and  may  commute  or  remit  a  penal 
sentence.  A  sentence  of  death  requires  the  unanimous 
confirmation  of  the  Council.  The  President  may,  with 
the  unanimous  consent  of  the  Council,  proclaim  war  and 
publish  a  war  ordinance  summoning  all  persons  to  serve 
(§§  23,  66,  84). 

The  provisions  relating  to  the  military  organization 
(§§93-114)  are  interesting  chiefly  as  indicating  the 
highly  militant  character  of  the  republic.  Express  pro- 
vision is  made  not  only  for  foreign  war  and  for  the 
maintenance  of  order  at  home,  but  also  for  the  cases  of 
native  insurrection  and  of  disaffection  or  civil  war  among 
the  whites.  The  officers  are  all  elected  by  the  burghers, 
the  Commandant-General  by  the  whole  body  of  burghers 
for  ten  years,  the  commandants  in  each  district  for  five 
years,  the  field  cornets  and  assistant  field  cornets  in  the 
wards  for  three  years. 

The  judiciary  (§§  115-135)  consists  of  landrosts  (magis- 


7  II  0  SOUTH  AFRICAN  CONSTITUTIONS  373 

trates  who  also  discharge  administrative  duties),  heem- 
raden  (local  councillors  or  assessors),  and  jurors.  The 
provisions  regarding  the  exercise  of  judicial  power  are 
minute  and  curious  in  their  way,  but  have  no  great  in- 
terest for  constitutional  purposes.  Two  landrosts  are 
proposed  to  the  people  of  the  judicial  district  by  the 
Executive  Council,  and  the  people  vote  between  these 
two.  Minute  provisions  regarding  the  oaths  to  be  taken 
by  these  officials  and  by  jurymen,  and  regarding  the 
penalties  they  may  inflict,  fill  the  remaining  articles.  A 
guarantee  for  the  independence  of  the  courts  is  to  be 
found  in  the  general  statement  in  article  15  that  'the 
judicial  power  is  vested  in  landrosts,  heemraden,  and 
jurors,'  and  in  the  declaration  (§  57)  that  the  judicial  offi- 
cers are  '  left  altogether  free  and  independent  in  the 
exercise  of  their  judicial  power.'  A  High  Court  and  a 
Circuit  Court,  not  provided  for  in  the  old  Grondwet, 
appear  in  that  of  1889,  and  are  appointed  for  life.  The 
High  Court  consists  of  a  chief  justice  and  four  puisne 
judges. 

The  old  Grondwet  also  contained  some  curious  details 
relating  to  civil  administration  (which  was  primarily  en- 
trusted to  the  judicial  officers,  supported  by  the  com- 
mandants and  field  cornets),  and  the  revenue  of  the 
State,  which  was  intended  to  be  drawn  chiefly  from  fees 
and  licences,  the  people  having  little  disposition  to  be 
directly  taxed.  The  farm  tax  was  not  to  exceed  forty 
dollars,  and  the  poll-tax,  payable  by  persons  without  or 
with  only  one  farm,  was  fixed  at  five  dollars  annually. 
Five  dollars  was  the  payment  allowed  to  each  member 
of  the  Volksraad  for  each  day's  attendance.  Most  of 
these  provisions  have  disappeared  from  the  instrument 
of  1889.  The  salary  of  the  President  of  the  Council, 
which  had  been  fixed  at  5,333  dollars,  2  schellings,  and 
4  stuivers,  to  be  increased  as  the  revenue  increased, 
now  amounts  to  £7,000  sterling  ($35,000)  per  annum, 
besides  allowances. 

The  most  considerable  change  made  since  1889  was 


374  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

the  establishment,  in  1890,  of  a  chamber  called  the  Sec- 
ond Volksraad,  which  is  elected  on  a  more  liberal  basis 
than  the  First  Volksraad,  persons  who  have  resided 
in  the  country  for  two  years,  have  taken  an  oath  of 
allegiance  and  have  complied  with  divers  other  require- 
ments, being  admissible  as  voters.  This  assembly,  how- 
ever, enjoys  little  real  power,  for  its  competency  is  con- 
fined to  some  specified  matters,  and  to  such  others  as 
the  First  Volksraad  may  refer  to  it ;  and  its  acts  may  be 
overruled  by  the  First  Raad,  whereas  the  Second  Raad 
has  no  power  of  passing  upon  the  resolutions  or  laws 
enacted  by  the  First  Raad.  The  Second  Volksraad  is, 
therefore,  not  a  second  chamber  in  the  ordinary  sense 
of  the  term,  such  as  the  Senate  in  American  States  or 
the  House  of  Lords  in  England,  but  an  appendage  to  the 
old  popular  House.  It  was  never  intended  to  exercise 
much  power,  and  was,  in  fact,  nothing  more  than  a  con- 
cession, more  apparent  than  real,  to  the  demands  of 
the  Uitlanders,  or  recent  immigrants  excluded  from 
citizenship. 

A  few  general  observations  may  be  made  on  this 
Constitution  before  we  proceed  to  examine  its  legal  cha- 
racter and  effect. 

It  was  in  its  older  form  a  crude,  untechnical  docu- 
ment, showing  little  trace  on  the  part  of  those  who 
drafted  it  either  of  legal  skill  or  of  a  knowledge  of  other 
constitutions.  The  language  was  often  vague,  and  many 
of  the  provisions  went  into  details  ill-fitted  for  a  funda- 
mental law. 

Although  enacted  by  and  for  a  pure  democracy,  it  was 
based  on  inequality — inequality  of  whites  and  blacks, 
inequality  of  religious  creeds.  Nqt  only  was  the  Dutch 
Reformed  Church  declared  to  be  established  and  en- 
dowed by  the  State,  but  Roman  Catholic  churches  were 
forbidden  to  exist,  and  no  Roman  Catholic  nor  Jew  nor 
Protestant  of  any  other  than  the  Dutch  Reformed 
Church  was  eligible  to  the  presidency,  or  to  membership 
of  the  legislature  or  executive  council.  In  its  improved 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  375 

shape  (1889)  some  of  these  faults  have  been  corrected, 
and  in  particular  the  religious  restrictions  were  reduced 
to  a  requirement  that  the  President,  the  Secretary  of 
State,  the  Landrosts  and  the  members  of  the  Volksraad 
should  belong  to  a  Protestant  Church.  The  door,  how- 
ever, remained  barred  against  persons  of  colour. 

It  contained  and  still  contains  little  in  the  nature  of 
a  Bill  of  Rights,  partly  perhaps  from  an  oversight  on 
the  part  of  its  draftsmen,  but  partly  also  owing  to  the 
assumption — which  the  early  history  of  the  republic 
amply  verified — that  the  government  would  be  a  weak 
one,  unable  to  encroach  upon  the  rights  of  private 
citizens. 

The  first  legal  question  which  arises  upon  an  exami- 
nation of  this  Constitution  relates  to  its  stability  and 
permanence.  Is  it  a  Rigid  or  a  Flexible  Constitution? 
That  is  to  say,  can  it,  like  the  constitution  of  the  Orange 
Free  State  and  that  of  the  United  States,  be  altered 
only  in  some  specially  prescribed  fashion?  Or  may  it  be 
altered  by  the  ordinary  legislature  in  the  ordinary  way, 
like  any  other  part  of  the  law? 

In  favour  of  the  former  alternative,  that  the  consti- 
tution is  a  Rigid  one,  appeal  has  been  made  not  only 
to  the  name  Grondwet  (Ground-law),  but,  which  is  of 
more  consequence,  to  some  of  its  language.  The  gene- 
ral declarations  of  the  power  of  the  people,  the  form  in 
which  they  entrust  power  to  the  legislature,  to  the  Ex- 
ecutive Council,  and  to  the  judiciary  respectively  (as 
well  as  to  the  military  authority),  look  as  if  meant  to 
constitute  a  triad  of  authorities,  similar  to  that  created 
by  the  constitutions  of  American  States,  no  one  of  which 
authorities  may  trespass  on  the  province  of  the  others. 
Some  things  seem  intended  to  be  secured  against  any 
alteration  by  the  legislature,  e.  g.,  article  9  declares  that 
'  the  people  will  not  allow  of  any  equality  between  co- 
loured and  white  inhabitants  ' ;  article  1 1  declares  that 
1  the  people  reserve  to  themselves  the  exclusive  right 
of  protecting  and  defending  the  independence  and 


376  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

inviolability  of  Church  and  State,  according  to  the 
laws.' 

On  the  other  hand,  it  is  argued  that  the  constitution 
must  be  deemed  to  be  a  Flexible  one,  because  it  did 
not  in  its  original  form,  and  does  not  now,  contain  any 
provision  whereby  it  may  be  altered,  otherwise  than  by 
the  regular  legislature  of  the  country  acting  according 
to  its  ordinary  legislative  methods.  One  cannot  suppose 
that  no  change  was  intended  ever  to  be  made  in  the 
Grondwet.  That  supposition  would  be  absurd  in  view 
of  the  very  minute  provisions  on  some  trivial  subjects 
which  it  contains.  No  distinction  is  drawn,  by  the  terms 
of  the  instrument,  between  these  minutiae  and  the  pro- 
visions of  a  more  general  and  apparently  permanent  na- 
ture. Ergo,  all  must  be  alterable,  and  alterable  by  the 
only  legislative  authority,  that  is  to  say,  the  Volksraad. 
This  view,  moreover,  is  the  view  which  the  legislature 
has  in  fact  taken,  and  in  which  the  people  have  certainly 
acquiesced.  Some  changes  have  been  made — such  as 
the  admission  to  the  electoral  franchise  of  persons  not 
belonging  to  the  Dutch  Reformed  Church,  the  creation 
of  a  new  supreme  court,  and  the  establishment  of  a 
Second  Volksraad — which  are  not  consistent  with  the 
Grondwet,  but  whose  validity  has  not  been  contested. 

The  difficulty  which  arises  from  the  fact  that,  whereas 
the  framers  of  the  Grondwet  appear  to  have  desired  to 
make  parts  of  their  work  fundamental  and  unchangeable, 
they  have  nevertheless  drawn  no  distinction  between 
those  parts  and  the  rest,  and  have  provided  no  specific 
security  against  the  heedless  change  of  the  weightiest 
parts,  may  be  explained  by  noting  that  they  were  not 
skilled  jurists  or  politicians,  alive  to  the  delicacy  of  the 
task  they  had  undertaken.  They  expected  that  the 
Volksraad  would  continue  to  be  of  the  same  mind  as 
they  were  then,  and  would  respect  what  they  considered 
fundamental ;  they  relied  on  the  general  opinion  of 
the  nation.  They  had,  moreover,  provided  a  method 
whereby  the  nation  should  always  have  an  opportunity 


7'U'O   SOUTH  AFRICAN  CONSTITUTIONS  377 

of  expressing  its  opinion  upon  legislation,  namely,  the 
provision  (§  12)  that  the  people  should  have  a  period  of 
three  months  within  which  to  '  intimate  to  the  Volksraad 
their  views  on  any  proposed  law/  it  being  assumed  that 
the  Volksraad  would  obey  any  such  intimation,  although 
no  means  is  provided  for  securing  that  it  will  do  so. 

This  provision  has  given  rise  to  a  curious  question. 
It  excepts  '  those  laws  which  admit  of  no  delay.'  Now 
the  Volksraad  has  in  fact  neglected  the  general  provi- 
sion, and,  instead  of  allowing  the  three  months'  period, 
has  frequently  hastily  passed  enactments  upon  which 
the  people  have  had  no  opportunity  of  expressing  their 
opinion.  Such  enactments,  which  have  in  some  instances 
purported  to  alter  parts  of  the  Grondwet  itself,  are  called 
'resolutions  '  (bcsluitc)  as  opposed  to  laws ;  and  when  ob- 
jection has  been  taken  to  this  mode  of  legislation, 
these  resolutions  seem  to  have  been  usually  justified  on 
the  ground  of  urgency,  although  in  fact  many  of  them, 
if  important,  could  hardly  be  called  urgent.  They  have 
been  treated  as  equally  binding  with  laws  passed  in  ac- 
cordance with  the  provisions  of  the  Grondwet  (for  up 
to  1895  article  12  seems  not  to  have  been  formally  al- 
tered) ;  and  it  is  only  recently  that  their  validity  has  been 
seriously  questioned  in  the  courts.  Those  who  support 
their  validity  argue  that  in  passing  such  resolutions  as 
laws,  the  Volksraad  must  be  taken  to  have  implicitly, 
but  decisively,  repealed  the  provision  of  article  12;  or 
that,  if  this  be  not  so,  still  the  Volksraad  is  under  article 
12  the  sole  judge  of  urgency,  and  can  legally  treat  things 
as  urgent  which  are,  in  fact,  not  so ;  a  view  affirmed  by 
the  Chief  Justice  in  a  case  (State  v.  Hess)  which  arose  in 
1895.  They  add  that  even  apart  from  both  these  argu- 
ments the  unbroken  usage  of  the  Volksraad  during  a 
number  of  years,  tacitly  approved  by  the  people,  must 
be  deemed  to  have  established  the  true  construction  of 
the  Constitution,  especially  as  according  to  Roman 
Dutch  law,  usage,  whether  affirmative  or  negative,  can 
alter  written  enactments  and  could  thus  annul  the  direc- 


378  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

tions  of  article  12.  So  it  is  written  in  the  Digest  of  Jus- 
tinian (I.  3.  32) :  '  Inveterata  consuetude  pro  lege  custo- 
ditur  .  .  .  nam  quid  interest  suffragio  populus  vo- 
luntatem  suam  declaret  an  rebus  ipsis  et  factis  ?  Quare 
rectissime  etiam  illud  receptum  est  ut  leges  non  solum 
suffragio  legis  latoris,  sed  etiam  tacito  consensu  omnium 
per  desuetudinem  abrogentur.'  To  this,  however,  it  is 
answered  that  the  principle  of  obsolescence  by  contrary 
practice  cannot  fitly  be  applied  where  a  statute  is  recent 
and  express. 

Until  1897,  the  High  Court  of  the  Transvaal  had  held 
that  the  resolutions  as  well  as  the  laws  passed  by  the 
Volksraad  were  fully  valid,  whether  or  no  they  had  been 
submitted  to  the  people  for  the  period  of  three  months, 
nor  had  the  question  of  their  being  really  urgent  been 
raised.  It  had  thus  declared  the  Grondwet  to  be  altera- 
ble by  the  Legislature,  and  so  not  a  Rigid  Constitution. 
In  that  year,  however,  in  the  case  of  Brown  v.  Leyds,  the 
Court  held,  by  a  majority,  that  a  law  which  had  been 
passed  without  having  been  submitted  to  the  people 
during  the  period  prescribed  by  the  Grondwet  was  un- 
constitutional and  therefore  void,  thus  appearing  to  as- 
sert (for  the  language  of  the  judgement  is  not  very  clear) 
the  view  that  the  Grondwet  was  a  Rigid  Constitution, 
not  alterable  by  the  Legislature.  This  action  was 
warmly  resented  by  the  Executive  and  Legislature :  and 
the  latter  passed  a  resolution  directing  the  President  to 
require  from  every  judge  on  pain  of  dismissal  a  declara- 
tion that  he  would  in  future  recognize  as  valid  every 
law  passed  by  the  Volksraad,  and  not  again  assert  the 
so-called  '  testing  power '  of  inquiring  whether  a  law 
conformed  to  the  provisions  of  the  Grondwet.  The 
Chief  Justice  refused  to  make  this  declaration,  and  was 
accordingly  dismissed,  much  to  the  regret  of  those  who 
remembered  his  past  services  to  the  State. 

On  a  review  of  the  whole  matter,  apart  from  the  po- 
litical passion  which  has  been  brought  into  it,  the  true 
view  would  appear  to  be  the  following,  though  I  state 


TH'O   SOUTH  AFRICAN   CONSTITUT10\*  379 

it  with  the  diffidence  becoming  a  stranger  who  is  also  im- 
perfectly informed  as  to  the  constitutional  history  of  the 
republic. 

The  Grondwet  of  the  South  African  Republic,  though 
possibly  intended  by  its  framers  to  be  treated,  in  respect 
of  its  most  iniportant  provisions,  as  a  fundamental  law 
not  to  be  altered  by  the  Volksraad  in  the  exercise  of  its 
ordinary  powers,  is  not  really  a  Rigid  constitution  but 
a  Flexible  one.  We  have  to  look  not  so  much  at  what 
the  framers  may  have  wished  as  at  what  the  language 
employed  actually  conveys  and  imports  ;  and  the  absence 
of  any  provision,  such  as  that  contained  in  the  Constitu- 
tion of  the  Orange  Free  State,  for  a  special  and  peculiar 
method  of  change,  is  decisive  upon  this  point.  An  Ameri- 
can lawyer,  accustomed  to  construe  strictly  documents 
which  contain  or  modify  powers,  might  be  inclined  to 
argue  that  the  validity  of  laws  (not  dealing  with  matters 
which  '  admit  of  no  delay ')  which  had  been  passed  as 
mere  resolutions,  ignoring  article  12,  may  have  been 
doubtful  until  the  Volksraad  modified  that  article  by 
legislation.  But  the  Transvaal  High  Court  had  held  that 
the  question  of  urgency  was  a  question  for  the  discretion 
of  the  Volksraad ;  and  it  must  be  added  that  persons  ac- 
customed to  other  legal  systems  do  not  necessarily  pro- 
ceed upon  American  principles.  The  Swiss,  for  instance, 
make  their  legislature  the  interpreter  of  the  Constitu- 
tion for  the  purpose  of  determining  the  extent  of  legisla- 
tive power1.  Allowing  for  this,  and  remembering  that 
both  the  law  courts  and  the  whole  people  had  until  1897 
treated  the  Volksraad  as  an  absolutely  sovereign  body, 
the  action  it  took  in  asserting  its  sovereignty  need  excite 
no  surprise.  It  was  claiming  nothing  more  than  the 
powers  actually  enjoyed  by  the  British  Parliament. 
However,  although  the  Volksraad  was  merely  enforcing 
the  rights  which  it  reasonably  (and  I  think  correctly) 
conceived  itself  to  possess,  and  could  not  have  permitted 
the  majority  of  the  High  Court  to  assert  a  power  pre- 

1  See  Essay  III,  p.  195. 


380  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

viously  unknown,  a  wiser  course  would  have  been  to 
amend  the  Constitution  in  some  way  which  would  have 
given  to  the  judiciary  a  more  assured  position  than  that 
which  had  been  secured  to  them  by  a  confessedly  crude 
and  imperfect  instrument.  It  was  through  the  confused 
language  of  the  Grondwet  that  the  whole  difficulty  arose, 
and  while  formally  declaring  that  the  Grondwet  was  not 
— as  it  certainly  was  not — a  Rigid  Constitution,  the 
Volksraad  ought  to  have  endeavoured  to  render  it  more 
suited  to  the  needs  of  a  society  which  had  grown  to  be 
different  from  that  for  which  it  had  been  originally 
enacted. 

IV.  OBSERVATIONS  ON   THE   CHARACTER   AND  WORKING 
OF  BOTH  CONSTITUTIONS. 

The  principles  of  these  Constitutions  are  highly  demo- 
cratic. They  were  intended  so  to  be.  Among  the  whites 
settled  in  these  wide  territories  there  prevailed  a  perfect 
social  equality,  a  passionate  love  of  independence,  and 
a  strong  sense  of  personal  dignity.  They  were  as  little 
influenced  by  political  theories  as  it  was  possible  for 
any  civilized  men  in  this  century  to  be.  Their  wish  for  a 
government  purely  popular,  and  indeed  for  very  little 
of  any  government  at  all,  was  due  to  their  personal  ex- 
perience and  to  the  conditions  under  which  they  found 
themselves  in  the  wilderness;  and  one  may  doubt 
whether  they  would  have  established  a  regular  govern- 
ment but  for  the  dangers  which  threatened  them  from 
the  warlike  native  tribes.  Such  sentiments  as  I  have  de- 
scribed would  have  disposed  them,  had  they  lived  in  a 
city,  or  in  a  small  area  like  the  cantons  of  Uri  or  Ap- 
penzell  in  Switzerland,  to  have  kept  legislation  and  the 
determination  of  all  grave  affairs  in  the  hands  of  a 
general  meeting  of  the  citizens.  But  they  lived  scat- 
tered over  a  vast  wilderness,  with  no  means  of  com- 
munication save  ox-wagons  which  travel  only  some 
twelve  miles  a  day.  In  the  Orange  River  Territory  when 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  381 

it  became  a  state  there  were  probably  less  than  three 
thousand  citizens,  though  its  area  was  nearly  that  of 
England.  Hence  primary  assemblies  were  impossible, 
and  power  had  to  be  entrusted  to  a  representative  body. 

The  predominance  of  the  legislature  is  the  most  con- 
spicuous feature  of  both  these  constitutions.  The  Trans- 
vaal Volksraad  originally  made  all  the  appointments  to 
the  civil  service,  for  the  President  had  only  the  right  of 
proposing,  and  even  in  the  revised  Grondwet  of  1889 
the  Raad  retains  the  right  of  approving  or  disapproving 
the  President's  appointments.  In  both  republics  the 
Volksraad  appoints  a  majority  of  the  Executive  Council 
which  surrounds  the  President,  to  advise,  but  also  to 
watch  and  check  him.  It  has  complete  control  of  reve- 
nue and  expenditure.  It  may  change  the  constitution, 
though,  in  the  Orange  Free  State,  only  by  a  prescribed 
majority.  The  President  has  no  veto  on  its  acts ;  nor  is 
it,  as  in  most  modern  free  countries,  divided  into  two 
chambers  likely  to  differ  from  and  embarrass  one  an- 
other. Its  vote,  which  may,  if  it  pleases,  be  a  single  vote, 
given  under  no  restrictions  but  those  of  its  own  mak- 
ing, is  decisive. 

The  comparative  feebleness  of  the  other  branches  of 
government  corresponds  to  the  overwhelming  strength 
of  the  legislature.  The  authority  of  the  judiciary  re- 
ceived from  the  first  a  somewhat  vague  recognition,  and 
its  independence  was  at  one  time,  in  the  South  African 
Republic,  seriously  threatened  by  the  executive  and 
legislature,  and  saved  only  by  the  exertions  of  the  bench 
and  bar,  which  aroused  public  opinion  on  its  behalf.  The 
later  controversy  between  the  Volksraad  and  the  Chief 
Justice  has  been  already  discussed.  In  the  Free  State 
the  Court's  claim  to  be  the  proper  and  authoritative  in- 
terpreter of  the  constitution,  which  would  be  clear  upon 
English  or  American  principles,  was  never  formally  ad- 
mitted. And  though  the  judges  are  in  both  republics 
appointed  for  life,  their  salaries  are  at  the  mercy  of  the 
legislature. 


382  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

The  executive  head  of  the  government  has  no  doubt 
the  advantage,  as  in  an  American  State,  of  being  directly 
chosen  by  the  people,  and  not,  as  in  France,  by  the 
legislature.  But  he  has  no  veto  on  acts  of  the  legisla- 
ture, while  his  acts  can  be  overruled  by  it,  at  least  in  the 
Orange  Free  State,  for  in  the  Transvaal  this  may  be 
more  doubtful.  Its  approval  is  required  to  any  appoint- 
ments he  may  suggest.  He  is  hampered  by  an  Executive 
Council  which  he  has  not  himself  selected,  resembling 
in  this  respect  an  American  State  governor  rather  than 
the  President  of  the  Union.  It  may,  in  the  Free  State, 
try  him  and  depose  him  if  convicted.  He  has  no  military 
authority,  such  as  that  enjoyed  by  the  British  Crown 
and  its  ministers,  or  by  the  American  President,  for 
that  belongs  to  the  Commandant-General  (though  in  the 
Orange  Free  State  the  Commandant  '  receives  instruc- 
tions '  from  the  President). 

Against  all  these  sources  of  weakness  there  are 
only  two  things  to  set.  The  President  can  speak  in 
the  Volksraad,  and  he  is  re-eligible  any  number  of 
times. 

The  Executive  Council,  as  already  observed,  seems 
intended  to  restrain  the  President,  while  purporting  to 
aid  and  advise  him.  It  may  be  compared  to  the  Privy 
Council  of  mediaeval  England,  with  the  important  dif- 
ference that  it  is  appointed,  not  by  the  executive,  but 
partly  by  the  legislature,  partly  by  the  people.  As  we 
shall  see  presently,  it  has  proved  to  be  an  unimportant 
part  of  the  machinery  of  government. 

In  all  these  points  the  two  constitutions  present  a 
close  likeness.  They  are  also  similar  in  the  recognition 
which  they  originally  gave,  and  have  not  wholly  ceased 
to  give,  to  a  state  church — an  institution  opposed  to 
democratic  ideas  in  America  and  in  the  British  Colonies 
— as  well  as  in  their  exclusion  of  persons  of  colour  from 
every  kind  of  political  right.  It  would  appear  that  upon 
this  point  there  has  never  been  any  substantial  difference 
of  opinion  in  the  two  republics.  Neither  indeed  is  there 


T\YO  SOUTH   .l/'A'/r.lxY  CONSTITUTW\*  383 

much  difference  of  opinion  in  the  British  parts  of  South 
Africa,  for  although  the  influence  of  English  ideas  has 
been  so  far  felt  that  in  Cape  Colony  persons  of  colour 
are  permitted  to  vote,  still  the  combination  of  a  property 
qualification  with  an  educational  qualification  greatly 
restricts  their  number.  A  republican  form  of  gov- 
ernment, therefore,  does  not  necessarily  appear  to 
make  for  '  human  rights  '  in  the  American  sense  of 
that  term,  any  more  than  it  did  in  the  United  States 
in  1788. 

Speaking  generally,  these  two  Constitutions  carry  the 
principle  of  the  omnipotence  of  the  representative  cham- 
ber to  a  maximum.  This  will  be  more  clearly  seen  if  we 
compare  the  system  they  create,  first  with  the  cabinet 
system  of  Britain  and  her  self-governing  colonies,  and 
secondly  with  the  presidential  system  of  the  United 
States. 

The  main  differences  between  the  South  African 
scheme  of  government  and  the  British  may  be  briefly 
summarized. 

The  head  of  the  executive  is,  in  the  South  African  re- 
publics, chosen  directly  by  the  people,  whereas  in  Brit- 
ain and  her  colonies  the  executive  ministry  is  virtually 
chosen  by  the  legislature1,  though  nominally  by  the 
Crown  or  its  local  representative. 

In  these  republics  the  executive  cannot,  as  can  mini- 
sters under  the  British  system,  be  dismissed  by  a  vote 
of  the  legislature,  nor  on  the  other  hand  has  the  execu- 
tive the  power  of  dissolving  the  legislature. 

In  these  republics  the  nominal  is  also  the  real  and 
acting  executive  head,  whereas  in  the  British  system 
a  responsible  ministry  is  interposed  between  the  nominal 
head  and  the  legislature. 

In  all  the  above-mentioned  points  the  South  African 
system  bears  a  close  resemblance  to  the  American. 

1  Using  the  expression  which  Bagehot  has  made  familiar,  though  of  course 
Parliament  is  far  from  determining  the  entire  composition  of  a  ministry,  which 
may  occasionally  contain  persons  it  would  not  have  selected. 


384  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

In  these  republics  the  President's  Council  need  not 
consist  of  persons  in  agreement  with  his  views  of  policy. 
It  may  even  be  hostile  to  him,  as  part  of  Warren  Hast- 
ings's  council  at  Calcutta  was  in  permanent  opposition 
to  that  governor.  Nor  does  the  Executive  Council  con- 
sist, like  the  (normal)  British  cabinet  and  United  States 
Federal  cabinet,  of  the  heads  of  the  great  administrative 
departments,  though  several  officials  sit  in  it. 

On  the  other  hand,  the  South  African  system  agrees 
with  the  British  in  permitting  the  head  of  the  working 
executive  to  speak  in  the  legislature,  a  permission  which 
has  proved  to  be  of  the  highest  importance,  and  which 
in  America  is  given  by  usage  neither  to  the  Federal 
President l  nor  to  a  State  governor. 

The  chief  differences  between  the  South  African  and 
the  American  system  are  the  following : — 

The  President  has^  in  the  South  African  republics, 
far  less  independence  than  belongs  in  the  United  States 
to  either  a  Federal  President  or  to  the  Governor  of  a 
State.  He  has  no  veto  on  acts  of  the  legislature,  and 
less  indirect  power  through  the  patronage  at  his  dispo- 
sal. Moreover,  the  one-chambered  legislature  is  much 
stronger  as  against  him  than  are  the  two-chambered 
legislatures  of  America,  which  may,  and  frequently  do, 
differ  in  opinion,  so  that  the  President  or  Governor  can 
play  off  one  against  the  other.  Further,  as  already  ob- 
served, an  American  Federal  President  has  a  cabinet 
of  advisers  whom  he  has  himself  selected,  and  an  Ameri- 
can State  governor  has  usually  officials  around  him  who, 
being  elected  by  a  party  vote  at  the  same  election,  are 
probably  his  political  allies ;  whereas  a  South  African 
President  might  possibly  have  an  Executive  Council  of 
opponents  forced  on  him  by  the  Volksraad.  And  even 
in  negotiations  with  foreign  states,  he  cannot  act  apart 
from  this  Executive  Council. 

The  distinctive  note  of  both  these  South  African  Con- 

1  Although  there  is  nothing-  in  the  federal  constitution  to  prevent  a  President 
from  addressing  either  House  of  Congress. 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  385 

stitutions  is  the  kind  of  relation  they  create  between  the 
Executive  and  the  Legislature.  These  powers  are  not 
disjoined,  as  in  the  United  States,  because  a  South  Afri- 
can President  habitually  addresses  and  may  even  lead 
the  Volksraad.  Neither  are  they  united,  as  in  Britain 
and  her  colonies,  where  the  Executive  is  at  the  same 
time  dependent  on  the  legislature,  and  also  the  leader  of 
the  legislature,  for  the  South  African  President  is  elected 
by  the  people  for  a  fixed  term,  and  cannot  be  displaced 
by  the  Volksraad.  He  combines  the  independence  of  an 
American  President  with  the  opportunities  of  influ- 
encing the  legislature  enjoyed  by  a  British,  or  British 
colonial,  Ministry.  For  nearly  all  practical  purposes  he 
is  at  the  mercy  of  the  legislature,  because  he  has  neither 
a  veto,  like  the  American  President,  nor  a  power  of  dis- 
solution, like  the  British  Ministry.  The  Volksraad  could 
take  all  real  power  from  him,  should  it  be  so  minded. 
But  he  is  strong  by  the  possession  of  the  two  advantages 
just  mentioned.  He  can  persuade  his  Volksraad,  which 
has  not,  by  forming  itself  into  organized  parties,  become 
inaccessible  to  persuasion.  He  can  influence  the  opinion 
of  his  people,  because  he  is  their  choice,  and  a  single  man 
in  a  high  place  fixes  the  attention  and  leads  the  minds  of 
a  people  more  than  does  an  assembly. 

It  must,  however,  be  remembered  that  the  features — 
perhaps  one  may  say  the  merits — which  I  have  noted 
as  shown  in  the  working  of  the  South  African  system, 
belong  rather  to  small  than  to  large  communities.  The 
Free  State  had  in  1895  only  some  seventeen  thousand 
voting  citizens,  the  Transvaal  not  many  more.  Athens 
in  the  days  of  Themistocles  had  about  thirty  thousand. 
In  large  countries,  with  large  Legislatures,  whose  size 
would  engender  political  parties,  things  would  work  out 
differently.  Furthermore,  in  a  large  State,  the  admini- 
strative departments  would  be  numerous  and  their  work 
heavy.  The  President  could  not  discuss  departmental 
affairs  with  the  Raad,  and  could  not  easily  be  made  per- 
sonally responsible  for  all  that  his  administrative  officers 


386  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

did.  And  the  less  knowledge  he  had  of  affairs  and  of 
persons,  the  less  influence  he  exerted  over  the  Raad,  the 
more  would  his  Executive  Council  tend  to  check  him. 
Its  members  would  probably  intrigue  with  the  leaders  of 
parties  in  the  Volksraad,  and  make  themselves  a  more 
important  factor  in  the  government  than  they  have  been 
while  overshadowed  by  his  personality. 

Any  one  who,  knowing  little  or  nothing  about  the 
social  conditions  and  the  history  of  these  two  republics, 
should  try  to  predict  the  working  of  their  governments 
from  a  perusal  of  their  constitutions,  would  expect  to 
find  them  producing  a  supremacy,  perhaps  a  tyranny,  of 
the  representative  assembly;  for  few  checks  upon  its 
power  are  to  be  found  within  the  four  corners  of  either 
instrument.  He  would  be  prepared  to  see  party  govern- 
ment develop  itself  in  a  pronounced  form.  Power  would 
be  concentrated  in  the  party  majority  and  its  leaders. 
The  Executive  would  become  the  humble  instrument  of 
their  will.  The  courts  of  law,  especially  in  the  Trans- 
vaal with  its  Flexible  constitution,  would  be  unable  to 
stem  the  tide  of  legislative  violence.  The  President 
might  perhaps  attempt  to  resist  by  producing  a  dead- 
lock over  appointments ;  and  he  would  have  a  certain 
moral  advantage  in  being  the  direct  choice  of  the  people. 
But  the  one-chambered  Legislature  would  in  all  proba- 
bility prevail  against  him. 

Is  this  what  has  in  fact  happened?  Far  from  it. 
Party  government,  in  the  English  and  American  sense, 
has  not  made  its  appearance.  The  Legislature  has  not 
become  the  predominant  power,  subjecting  all  others 
to  itself.  It  has,  in  general,  followed  the  lead  of  the 
Executive.  The  Courts  of  law,  though  (in  the  Trans- 
vaal) at  one  moment  menaced,  have  administered  jus- 
tice with  fairness  and  independence.  But  in  order  to 
describe  what  has  happened,  I  must,  in  a  very  few  sen- 
tences, deal  separately  with  the  Orange  Free  State  and 
the  South  African  Republic,  for  though  their  constitu- 
tions are  similar  and  the  origin  of  their  respective  popu- 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  387 

lations  nearly  identical1,  their  history  has  been  very 
different. 

The  Orange  Free  State  had,  for  many  years  prior  to 
1899,  a  comparatively  tranquil  and  uneventful  career. 
One  native  war  inflicted  some  injury  upon  it,  but  the 
result  of  that  war  was  to  give  it  a  strip  of  valuable  terri- 
tory. It  had  joined  the  British  colonies  in  a  South 
African  Customs  Union,  had  placed  its  railroads  under 
the  management  of  the  Cape  Government,  had  main- 
tained friendly  relations  with  the  two  British  self-govern- 
ing colonies,  had  extended  the  franchise  to  immigrants 
on  easy  terms,  and  was  at  all  times  recognized  as  abso- 
lutely independent  by  the  British  Government.  Inter- 
nally its  development,  if  not  rapid,  was  both  steady  and 
healthful.  There  was  no  poverty  among  the  people,  and 
hardly  any  wealth.  No  exciting  questions  arose  to  di- 
vide the  citizens,  and  no  political  parties  grew  up.  The 
Legislature,  although  too  large,  has  been  a  sensible, 
business-like  body,  which  wasted  no  more  time  than 
debate  necessarily  implies.  From  1863  to  1888  it  was 
guided  by  the  counsels  of  President  Brand,  whom  the 
people  elected  for  five  successive  terms,  and  whose 
power  of  sitting  in  it  and  addressing  it  proved  of  the 
utmost  value,  for  his  judgement  and  patriotism  inspired 
perfect  confidence.  His  successor  Mr.  Reitz,  who  was 
obliged  by  ill-health  to  retire  from  office  in  1895,  en- 
joyed equal  respect  and  almost  equal  influence,  when  he 
chose  to  exert  it,  with  the  Volksraad,  and  things  went 
smoothly  under  him,  as  they  promised  to  do  under  Presi- 
dent Steyn,  who  was  elected  in  1896,  for  the  latter  also 
was  believed — so  I  heard  when  visiting  the  Free  State 
in  1895 — to  possess  the  qualities  which  had  endeared  his 
predecessors  to  the  community.  The  Executive  Council 
has  not  proved  to  be  a  very  valuable  part  of  the  scheme 
of  government;  and  some  judicious  observers  thought 
the  constitution  ought  to  be  amended  by  strengthening 

1  The  British  element  is  larger  among  the  citizens  of  the  Orange  Free  State  than 
it  is  in  the  burgher  population  of  the  Transvaal. 


888  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

the  position  of  the  courts  and  introducing  provisions  for 
a  popular  vote  on  constitutional  amendments,  similar 
to  those  which  exist  in  American  States  and  in  Switzer- 
land. But,  on  the  whole,  the  system  of  government 
worked  smoothly,  purely  and  efficiently;  the  Legisla- 
ture was  above  suspicion,  and  the  people  were  content 
with  their  institutions. 

Very  different  had  been  the  annals  of  the  South  Afri- 
can Republic.  Soon  after  the  Grondwet  was  adopted 
in  1858,  a  civil  war  broke  out;  and  from  that  time  onward 
factions  and  troubles  of  all  kinds  were  seldom  wanting. 
In  1877  the  country,  then  threatened  by  native  enemies, 
was  annexed  to  the  British  dominions  against  the  will 
of  the  people  :  in  1881  its  autonomy  was  restored,  subject 
to  British  suzerainty1.  Its  government,  however,  con- 
tinued to  be  pressed  by  financial  and  other  difficulties, 
till  the  discovery  of  rich  gold-fields  in  1884-6,  while  sud- 
denly increasing  the  revenue,  drew  in  a  stream  of  im- 
migrants which  has  steadily  continued  to  flow,  and 
therewith  raised  that  new  crop  of  political  troubles  of 
which  all  the  world  has  heard  2.  The  result  has  been  that 
the  Constitution  has  never  had  any  period  of  compara- 
tive peace  in  which  its  working  could  be  fairly  tested. 
If  it  has  not  worked  as  smoothly  as  that  of  the  Free 
State,  this  may  be  due  not  merely  to  inherent  defects 
but  to  the  strain  which  civil  and  foreign  wars  have 
placed  upon  it.  The  Legislature,  however,  has  not 
played  the  leading  part.  President  Burgers,  who  held 

1  A  further  convention  was  made  in  1884,  whose  articles,  omitting  all  reference 
to  '  suzerainty  '  conceded  an  independence  qualified  only  in  respect  of  the  veto 
retained  by  Britain  over  treaties  with  foreign  powers. 

2  When  these  immigrants  from  all  parts  of  the  world  swarmed  into  the  coun- 
try, admission  to  the  franchise  was  made  more  difficult,  because  the  conservative 
section  of  the  citizens  naturally  feared  that  the  newcomers,  many  of  whom  did  not 
intend  to  make  the  country  their  home,  might,  if  they  forthwith  acquired  voting 
power,  soon  secure  a  majority  and  overturn  the  existing  system  of  the  republic, 
including  the  official  use  of  the  Dutch  language  and  the  relations  of  Church  and 
State.    These  non-burgher  immigrants  have  been  absurdly  described  as  '  helots.' 
A  closer  parallel  to  them  is  to  be  found  not  in  the  semi-serfs  of  Sparta  but  in  the 
class  of  resident  aliens  known  at  Athens  as  metics  OeVoiKoO •    But  they  were  indeed 
far  better  off  than  that  class,  since  they  enjoyed  full  civic  rights  in  all  matters  of 
private  law,  wanting  only  the  right  of  sharing  in  the  government. 


TWO   SOUTH  AFRICAN  CONSTITUTIONS  389 

office  from  1872  till  1877,  was,  like  President  M.  W.  Pre- 
torius  before  him,  practically  more  powerful  than  the 
Volksraad;  and  since  1881  President  Kruger,  who  has 
been  thrice  re-elected,  has  been  the  ruling  force  in  the 
politics  of  the  country.  By  his  influence  over  the  peo- 
ple, by  his  constant  presence  and  speeches  in  the  Volks- 
raad, he  threw  its  leaders  entirely  into  the  shade,  and 
probably  exerted  more  actual  power  than  the  chief  ma- 
gistrate of  any  other  republic,  though  there  was  scarcely 
any  other  chief  magistrate  whose  legal  authority  was 
confined  within  such  narrow  limits.  So  much  may  fo- 
reign troubles  or  economic  and  social  facts,  and  so  much 
do  the  qualities  of  individual  men,  affect  and  modify 
and  prevail  over  the  formal  rules  and  constitutional  ma- 
chinery of  government.  The  Legislature  therefore  has 
not  had  in  the  Transvaal  that  career  of  encroachment 
upon  and  triumph  over  the  other  authorities  in  the  State 
which  might  have  been  predicted  for  it.  Its  turn  might 
have  come  when  external  relations  were  tranquil  and 
domestic  controversies  arose.  When  foreign  affairs  oc- 
cupy men's  minds  and  call  for  rapid  decision  as  well  as 
for  continuity  of  policy,  the  Legislature  is  apt  to  be,  in 
all  countries,  dwarfed  by  the  Executive. 

POSTSCRIPT. 

Since  the  foregoing  sketch  of  these  remarkable  ex- 
periments in  the  construction  of  Frames  of  Government 
was  written  (in  1896),  both  the  Dutch  republics  have 
become  involved  in  a  deplorable  war  with  England, 
which  has  lasted  for  many  months,  and  still  continues 
at  the  time  of  this  writing.  It  has  brought  misery  and 
desolation  upon  South  Africa,  and  not  least  upon  that 
singularly  happy, prosperous, peaceful  and  well-governed 
community,  the  Orange  Free  State.  While  the  flames 
are  still  raging,  no  one  can  conjecture  in  what  form 
these  two  constitutions  will  emerge  from  the  furnace, 
or  whether  indeed  they  will  survive  at  all.  In  the  midst 


390  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

of  so  terrible  a  catastrophe,  a  catastrophe  unredeemed 
by  any  prospect  of  benefit  to  any  of  the  combatants, 
and  one  whose  results  must  be  fateful  in  many  ways  for 
the  future  of  South  Africa,  and  possibly  also  of  Bri- 
tain, the  destruction  or  transformation  of  constitutions 
seems  but  a  small  matter.  But  had  these  two  republics 
been  suffered  to  continue  the  normal  course  of  their 
constitutional  development,  that  development  would 
have  been  full  of  interest.  It  might  even  have  conveyed 
valuable  instruction  or  suggested  useful  examples  to 
other  small  commonwealths,  for  in  the  scheme  of  these 
Constitutions,  and  especially  in  that  of  the  Free  State, 
there  are  some  merits  not  to  be  found  either  in  the 
American  or  in  the  British  system.  These  simple  Free 
State  farmers  were  wiser  in  their  simplicity  than  some 
of  the  philosophers  who  have  at  divers  times  planned 
frames  of  government  for  nascent  communities.  But 
though  Wisdom  is  justified  of  all  her  children,  she  can- 
not secure  that  her  children  shall  survive  the  shock  of 
arms. 


VIII 

THE    CONSTITUTION    OF  THE 
COMMONWEALTH  OF  AUSTRALIA 

I.  INTRODUCTORY. 

AUSTRALIA  is  the  first  instance  in  history  of  a  whole 
continent  whose  inhabitants  are  all  (if  we  exclude  the 
vanishing  aborigines)  of  one  race  and  all  owe  one  alle- 
giance. Thus  it  has  supplied  the  only  instance  in  which 
a  political  constitution  has  been,  or  could  have  been, 
framed  for  a  whole  continent.  It  is  moreover  one  of 
the  very  few  cases  in  history  in  which  a  number  of  com- 
munities politically  unconnected  (save  by  their  common 
allegiance  to  a  distant  Crown)  who  had  felt  themselves 
to  be  practically  a  nation  have  suddenly  transformed 
themselves  into  a  National  State,  formally  recognizing 
their  unity  and  expressing  it  in  the  national  institutions 
which  they  proceeded  to  create.  There  could  hardly  be 
a  more  striking  illustration  of  the  speed  with  which 
events  have  been  moving  during  the  last  and  the  present 
age  than  the  fact  that  Australia,  or  New  Holland  as  it 
was  then  called,  was,  except  as  to  part  of  its  coasts, 
marked  as  a  Terra  Incognita  upon  our  maps  so  late  as 
the  beginning  of  the  eighteenth  century,  that  the  first 
British  settlement  was  not  planted  in  it  at  Sydney  (not 
far  from  Captain  Cook's  Botany  Bay)  till  1788,  that  re- 
sponsible government  was  not  conferred  upon  the  oldest 


392  THE  AUSTRALIAN  COMMONWEALTH 

colony,  New  South  Wales,  until  1855,  nor  upon  West 
Australia  till  1890. 

Besides  the  interest  with  which  every  one  must  see 
the  birth  of  a  new  nation,  occupying  a  vast  and  rich 
territory,  the  student  of  political  science  finds  further 
matter  for  inquiry  and  reflection  in  the  enactment  of  an 
elaborate  constitution  for  the  Commonwealth  of  Au- 
stralia. Every  creation  of  a  new  scheme  of  government 
is  a  precious  addition  to  the  political  resources  of  man- 
kind. It  represents  a  survey  and  scrutiny  of  the  consti- 
tutional experience  of  the  past.  It  embodies  an  experi- 
ment full  of  instruction  for  the  future.  The  statesmen 
of  the  Convention  which  framed  this  latest  addition  to 
the  world's  stock  of  Instruments  of  Government  had 
passed  in  review  all  previous  experiments,  had  found 
in  them  examples  to  follow  and  other  examples  to  shun, 
had  drawn  from  them  the  best  essence  of  the  teachings 
they  were  fitted  to  impart.  When  the  Convention  pre- 
pared its  highly  finished  scheme  of  polity,  it  delivered 
its  judgement  upon  the  work  of  all  who  had  gone  before, 
while  contributing  to  the  materials  which  will  be  avail- 
able for  all  who  come  hereafter  to  the  work  of  building 
up  a  State. 

Nearly  all  the  precedents  which  the  Australian  Con- 
vention had  at  its  disposal  belong  to  very  recent  times, 
in  fact  to  the  last  century  and  a  half.  Though  federal 
governments  are  ancient — the  oldest  apparently  is  that 
formed  by  the  cities  of  Lycia  in  the  fourth  century  B.C. 
— the  ancient  federations  scarcely  got  beyond  the  form 
of  leagues  of  small  republics  for  the  purpose  of  common 
military  defence.  Such  leagues  never  quite  grew  into 
Federal  States,  properly  so  called,  i.e.  States  in  which 
the  central  government  exercises  direct  power  over  the 
citizens  of  the  component  communities.  The  same  re- 
mark applies  to  the  confederacies  of  the  Middle  Ages, 
such  as  that  of  the  Hanse  Towns  and  that  of  the  old 
Swiss  Cantons,  as  well  as  to  the  United  Provinces  of 
the  Netherlands.  The  first  true  Federal  State  founded 


THE  AUSTRALIAN  COMMOX]\'EALTH  393 

on  a  complete  and  scientific  basis  was  the  United  States, 
which  dates  from  1788,  when  its  present  Constitution 
was  substituted  for  the  Articles  of  Confederation  of 
1776.  Next  came  the  Constitution  of  the  Swiss  Con- 
federation, enacted  in  1848,  and  replacing  a  much  looser 
form  of  union  which  had  previously  joined  the  Cantons 
of  Switzerland.  Its  present  amended  form  dates  from 
1874.  The  third  was  the  Constitution  of  Canada,  estab- 
lished by  ftie  British  North  America  Act  of  1867.  Still 
later  came  the  Constitution  of  the  North  German  Con- 
federation (1866)  enlarged  into  that  of  the  new  Ger- 
manic Empire  (1871),  a  remarkable  Federal  State  with 
a  monarch  for  its  head,  and  including  as  its  members 
both  large  kingdoms,  such  as  Bavaria  and  Wiirtemberg, 
and  the  city  republics  of  Lubeck,  Bremen,  and  Ham- 
burg l.  But  this  last-named  Federation,  instructive  as  it 
is,  deals  with  conditions  too  dissimilar  from  those  of 
Australia  to  furnish  many  precedents  in  point.  It  was 
the  Constitutions  of  the  United  States  and  of  Canada 
which  the  Australians  studied  most  carefully,  and 
whence  they  drew  as  well  inspiration  as  many  useful 
suggestions.  And  the  student  who  examines  the  Au- 
stralian scheme  will  find  it  interesting  to  note  many 
points  that  recall,  by  way  either  of  likeness  or  of  con- 
trast, the  systems  of  the  United  States,  of  Switzerland, 
and  of  Canada.  It  is  only  with  these  three  that  I  propose 
to  compare  the  Australian  Constitution  in  the  pages  that 
follow.  As  I  am  writing  not  for  lawyers  but  for  stu- 
dents of  history  and  of  constitutions,  who  desire  to  un- 
derstand the  nature  of  this  new  Government  sufficiently 
to  follow  with  intelligence  the  course  of  political  life 
under  it,  I  shall  pass  lightly  over  its  more  technical  and 
more  purely  legal  aspects,  and  dwell  rather  upon  those 
general  features  which  will  give  to  the  future  Australian 
polity  its  character  and  spirit. 

1  One  might  add  the  Constitution  of  the  Austro-Hungarian  Monarchy,  which 
is  a  sort  of  double  federation.  But  it  is  too  peculiar  to  serve  as  an  example  to  other 
peoples  proposing  to  federate. 


394  THE  AUSTRALIAN  COMMONWEALTH 

II.  THE  MOVEMENT  FOR  FEDERATION. 

Like  the  settlements  of  Britain  in  North  America,  the 
Australian  settlements  were  organized  as  Colonies  at 
different  dates,  and  several  of  them  independently  of  the 
others1.  So,  again  like  those  of  North  America,  each 
remained  legally  unconnected  with  the  others,  except 
through  the  allegiance  they  all  owed  to  the  British 
Crown,  which  sent  out  Governors  to  administer  them. 
These  officers  were  at  first  practically  despotic;  but 
when  self-government  was  conferred  upon  a  Colony, 
they  became  the  nominal  heads  of  an  executive  which 
in  fact  consisted  of  ministers  responsible  to  the  elective 
legislature  of  that  Colony. 

Little  as  there  was  in  the  way  of  official  connexion 
between  the  scattered  settlements,  their  inhabitants  al- 
ways deemed  themselves  Australians,  giving  their  senti- 
mental attachment  rather  to  the  country  as  a  whole  than 
to  their  respective  colonies.  They  were  all  English; 
they  all  lived  under  similar  conditions :  their  local  life 
had  not  lasted  long  enough  to  form  local  traditions  with 
which  sentiment  could  entwine  itself.  The  very  names 
of  some  of  the  colonies  did  not  favour  individualization, 
for  who  would  call  himself  a  Newsouthwalesian?  And 
the  idea  that  the  colonies  ought  to  be  united  into  one 
political  body  emerged  very  early.  As  far  back  as  1849 
a  Committee  in  England  had  recommended  that  there 
should  be  a  Governor-General  for  all  Australia,  with 
power  to  convene  a  General  Assembly  to  legislate  on 
matters  of  common  colonial  interest,  and  a  bill  intro- 
duced into  Parliament  in  that  year  contained  clauses  for 
establishing  such  a  legislature.  These  provisions  were 
dropped,  for  the  time  was  not  ripe,  yet  the  idea  continued 
to  occupy  the  minds  of  Australian  statesmen  from  that 

1  New  South  Wales  in  1788,  Tasmania  in  1825,  Western  Australia  in  1829,  South 
Australia  in  1836,  Victoria  in  1851,  Queensland  in  1859.  Victoria  and  Queensland 
had  however  been  originally  settled  (1836  and  1826),  and  for  some  time  admini- 
stered, from  New  South  Wales,  while  Tasmania  had  been  made  a  penal  settlement 
as  early  as  1804. 


THE  AUSTRALIAN  COMMONWEALTH  395 

year  onwards ;  and  it  received  a  certain  impulse  from 
the  creation  of  the  Canadian  Confederation  in  1867. 
AY  hat  it  wanted  was  motive  power,  that  is  to  say,  a  sense 
of  actual  evils  or  dangers  to  be  averted,  of  actual  bene- 
fits to  be  secured,  by  the  union  of  the  Colonies  into  one 
National  State.  Democratic  communities,  occupied  by 
their  own  party  controversies,  are  little  disposed  to  deal 
with  questions  which  are  not  urgent,  and  which  hold  out 
no  definite  promise  either  of  benefit  to  the  masses  or  of 
political  gain  to  the  leaders.  However,  in  1883  events 
occurred  which  evoked  a  new  Pan-Australian  feeling, 
and  indicated  objects  fit  to  be  secured  by  a  united  Au- 
stralian government.  The  late  Lord  Derby,  then  Secre- 
tary of  State  for  the  Colonies,  was  the  most  cautious  and 
unsentimental  of  mankind.  He  belonged  to  the  old 
school  of  English  statesmen  who  deprecated — and  in 
some  cases  wisely  deprecated — further  additions  to  the 
territories  and  responsibilities  of  Britain.  Disregard- 
ing the  representations  of  the  Governments  of  several 
among  the  Colonies,  he  neglected  to  occupy  the  north- 
ern part  of  the  great  neighbouring  island  of  New  Guinea 
which  Australian  opinion  desired  to  see  British,  and 
permitted  it,  to  their  great  vexation,  to  be  taken  by 
Germany.  About  the  same  time  the  escape  of  convicts 
into  Australia  from  the  French  penal  settlement  in  New 
Caledonia  had  caused  annoyance,  and  movements  were 
soon  afterwards  made  by  France  which  seemed  to  in- 
dicate an  intention  to  appropriate  the  New  Hebrides 
group  of  islands.  These  occurrences  roused  the  Au- 
stralians to  desire  an  authority  which  might  deliver  their 
common  wishes  to  the  Home  Government  and  take  any 
other  steps  necessary  for  guarding  their  common  in- 
terests. Accordingly  a  conference  of  delegates  from  all 
the  Colonies,  including  New  Zealand  and  Fiji,  met  in 
1884,  and  prepared  a  scheme  which  was  transmitted  to 
England,  and  was  there  forthwith  enacted  by  the  Im- 
perial Parliament  under  the  name  of  The  Federal  Coun- 
cil of  Australasia  Act,  1885.  This  scheme  was,  how- 


396  THE  AUSTRALIAN  COMMONWEALTH 

ever,  (as  I  observed  when  it  was  under  discussion  in  the 
House  of  Commons)  a  very  scanty,  fragmentary  and  im- 
perfect sketch  of  a  Federal  Constitution.  It  had  no 
executive  power  and  no  command  of  money.  No  colony 
need  join  unless  it  pleased,  and  each  might  withdraw 
when  it  pleased.  Thus  it  befell  that  the  plan  excited 
little  popular  interest,  and  gave  such  faint  promise  of 
energetic  action  that  only  four  colonies,  Victoria, 
Queensland,  Tasmania,  and  South  Australia,  entered 
into  it;  and  of  these  South  Australia  presently  with- 
drew. Meanwhile  the  need  for  some  general  military 
organization  for  all  the  Colonies  began  to  be  felt;  and 
further  objects  attainable  by  union  floated  before  men's 
minds.  With  the  increase  of  trade  and  industry,  the 
vexation  of  tariff  barriers  between  the  colonies  grew 
daily  less  tolerable.  Subjects  emerged  on  which  uni- 
formity of  legislation  was  felt  to  be  needful.  The  irriga- 
tion question,  one  of  great  importance  for  so  arid  a 
country,  brings  New  South  Wales,  where  some  of  the 
large  rivers  have  their  source,  into  close  relation  with 
Victoria  and  South  Australia,  and  requires  to  be  treated 
on  common  lines.  These  and  other  grounds  led  to  an 
Inter-Colonial  Conference  of  Ministers  at  Melbourne  in 
1890,  and  then  to  the  summoning  of  a  Convention  of 
Delegates  from  the  Parliaments  of  all  the  Colonies,  in- 
cluding Tasmania.  This  latter  body,  which  included 
many  leading  men,  met  at  Sydney  in  1891,  debated  the 
matter  with  great  ability,  and  produced  a  Draft  Bill, 
which  became  the  basis  of  all  subsequent  discussions. 
The  movement,  hitherto  confined  to  a  group  of  political 
leaders,  now  began  to  be  taken  up  by  the  people,  and  be- 
came, especially  when  the  financial  troubles  of  1893  had 
begun  to  pass  away,  the  principal  subject  in  men's  minds. 
That  crisis  had  shown  all  the  Colonies  how  closely  their 
interests  were  bound  together,  and  had  made  them  de- 
sire to  remove  every  hindrance  to  an  industrial  and 
financial  recovery.  A  Conference  of  Prime  Ministers 
at  Hobart  in  1895  led  to  the  passing  by  the  several  Co- 


THE  AUSTRALIAN  COMMONWEALTH  397 

lonial  Parliaments  of  enabling  Acts  under  which  dele- 
gates were  chosen,  this  time  (following  recent  American 
precedents)  by  popular  vote,  to  a  new  Convention  which 
met  at  Adelaide  (in  South  Australia)  in  1897.  I*  Pro~ 
duced  a  second  draft  constitution,  based  on  that  of  1891, 
and  laid  it  before  the  legislatures  of  the  Colonies  for 
criticism.  About  seventy-five  amendments  were  pro- 
posed, and  were  considered  by  the  Convention  at  its 
further  sittings,  which  closed  in  March,  1898.  The  draft 
Constitution  was  then  submitted  to  a  popular  vote,  a 
new  expedient  in  the  British  dominions,  but  one  amply 
justified  by  the  need  for  associating  the  people  with  the 
work.  New  South  Wales  alone  failed  to  adopt  it  by  the 
prescribed  majority,  because  a  large  section  of  her  in- 
habitants thought  that  her  interests  had  not  been  duly 
regarded,  but  after  a  few  amendments  had  been  in- 
serted at  a  conference  of  the  Colonial  Prime  Ministers, 
her  people  ratified  it  upon  a  second  vote.  On  this  vote 
enormous  majorities  were  secured  in  Victoria,  South 
Australia  and  Tasmania,  smaller  ones  in  New  South 
Wales  and  Queensland.  The  Constitution  was  then  sent 
to  England  and  passed  into  law  by  the  Parliament  of 
the  United  Kingdom  under  the  title  of  The  Common- 
wealth of  Australia  Constitution  Act  (63  &  64  Viet, 
cap.  12).  Action  by  the  Imperial  Parliament  was  not 
only  a  convenient  way  of  overriding  all  the  colonial  con- 
stitutions by  one  comprehensive  Act,  but  was  legally 
necessary,  inasmuch  as  some  provisions  of  the  Consti- 
tution transcended  the  powers  of  all  the  colonial  legisla- 
tures taken  together.  Since  it  had  from  the  first  been 
understood  that  the  wish  of  the  mother  country  was  not 
to  impose  her  own  views  but  simply  to  carry  out  the 
wishes  of  the  Colonies,  only  one  slight  alteration,  an 
alteration  rather  of  form  than  substance,  was  made  in 
the  draft  as  transmitted  from  Australia,  the  ill-con- 
sidered notion  of  introducing  a  larger  change  having 
been  eventually  dropped  by  the  British  Ministry. 

I  have  mentioned  these  details  in  order  to  emphasize 


398  THE  AUSTRALIAN  COMMONWEALTH 

the  time,  care  and  pains  bestowed  by  the  Australians — 
for  the  work  was  entirely  their  own — upon  this  latest 
effort  of  constructive  statesmanship.  The  Constitution 
of  the  United  States  was  framed  by  a  Convention  which 
sat  at  Philadelphia,  with  closed  doors,  for  nearly  five 
months,  and  was  accepted  by  Conventions  in  all  the 
thirteen  States  without  change,  though  ten  amendments 
were  immediately  thereafter  passed  by  general  consent, 
their  adoption  having  been  the  price  paid  for  the  ratifi- 
cation of  the  main  instrument  by  some  doubtful  States. 

The  Constitution  of  Canada  took  a  little  more  than 
two  years  to  settle.  The  Resolutions  on  which  it  was 
based  were  first  of  all  drafted  by  a  conference  of  dele- 
gates at  Quebec.  These  were  approved  after  full  debate 
by  the  legislatures  of  the  Provinces,  and  were,  after 
some  modifications,  embodied  in  a  Bill  prepared  by  a 
small  conference  of  Canadian  statesmen  who  met  in 
London.  The  Bill  was  then  passed  by  the  Imperial  Par- 
liament, never  having  been  submitted  to  any  popular 
vote.  But  this  Australian  instrument  is  the  fruit  of  de- 
bates in  two  Conventions,  of  a  minute  examination  by 
legislatures,  of  a  subsequent  revision  by  the  second  Con- 
vention, of  further  modifications  in  a  few  details  by  a 
conference  of  Prime  Ministers,  and  has  after  all  this 
preparation  been  sealed  by  the  approval  of  the  peoples 
of  the  Colonies  concerned.  The  process  of  incubation 
lasted  for  nearly  nine  years,  being  all  the  while  conducted 
in  the  full  blaze  of  newspaper  reporting  and  under  the 
constant  oversight  of  public  opinion. 

III.  THE  CAUSES  WHICH  BROUGHT  ABOUT  FEDERATION. 

The  reasons  and  grounds  assigned  by  the  advocates 
of  Federation  were  more  numerous  than  those  urged  in 
the  United  States  in  1787-9,  or  in  Canada  in  1864-6; 
but  none  of  them  were  so  imperative,  for  the  Australian 
Colonies  were  far  less  seriously  menaced  by  actually 
insistent  evils,  due  to  the  want  of  a  common  national 


THE  AUSTRALIAN  COMMONWEALTH  399 

Government,  than  was  the  welfare  either  of  the  Ameri- 
can States  in  1787,  or  of  Switzerland  in  1848,  or  of  Ca- 
nada in  1867.  In  North  America,  it  was  the  growing 
and  indeed  hopeless  weakness  and  poverty  of  the  exist- 
ing Confederation,  coupled  with  the  barriers  to  com- 
mercial intercourse,  the  confusion  and  depreciation  of 
currency,  and  the  financial  demoralization  of  some  of 
the  States,  all  of  which  had  just  emerged  from  an  ex- 
hausting war,  that  drew  the  wisest  minds  of  the  nation 
to  Philadelphia,  induced  them  to  persist  in  efforts  to 
devise  a  better  union,  and  enabled  them  to  force  its  ac- 
ceptance upon  a  people  largely  reluctant.  In  Switzer- 
land it  was  the  War  of  Secession  (the  so-called  Sonder- 
bund  war)  of  1847  that  compelled  the  victorious  party  to 
substitute  a  new  and  truly  federal  constitution  for  the 
league  which  had  proved  too  weak.  In  Canada  the  re- 
lations of  the  French-speaking  and  English-speaking 
Provinces  (Lower  and  Upper  Canada)  had  become  so 
awkward  that  constitutional  government  was  being 
practically  brought  to  a  standstill,  and  nothing  remained 
but  that  the  leaders  of  the  two  parties  should  devise 
some  new  system.  Australia  was  in  no  such  straits. 
Her  colonies  might  have  continued  to  go  on  and  prosper, 
as  six  unconnected  self-governing  communities.  It  is 
therefore  all  the  more  to  the  credit  of  her  people  that 
they  forwent  the  pleasures  of  local  independence  which 
are  so  dear  to  vivacious  democracies,  perceiving  that 
although  necessity  might  not  dictate  a  federal  union, 
reason  recommended  it. 

The  grounds  which  were  used  in  argument  to  urge 
the  adoption  of  the  Federal  Constitution  may  be  summed 
up  as  follows  : — 

The  gain  to  trade  and  the  general  convenience  to  be 
expected  from  abolishing  the  tariffs  established  on 
the  frontiers  of  each  colony. 

The  need  for  a  common  system  of  military  defence. 

The  advantages  of  a  common  legislation  for  the  regu- 
lation of  railways  and  the  fixing  of  railway  rates. 


400  THE  AUSTRALIAN   COMMONWEALTH 

The  advantages  of  a  common  control  of  the  larger 
rivers  for  the  purposes  both  of  navigation  and  of 
irrigation. 

The  need  for  uniform  legislation  on  a  number  of  com- 
mercial and  industrial  topics. 

The  importance  of  rinding  an  authority  competent  to 
provide  for  old-age  pensions  and  for  the  settlement 
of  labour  disputes  all  over  the  country. 
The  need  for  uniform  provisions  against  the  entrance 
of  coloured  races  (especially  Chinese,  Malays,  and 
Indian  coolies). 

The  gain  to  suitors  from  the  establishment  of  a  High 
Court  to  entertain  appeals  and  avoid  the  expense 
and  delay  involved  in  carrying  cases  to  the  Privy 
Council  in  England. 

The  probability  that  money  could  be  borrowed  more 
easily  on  the  credit  of  an  Australian  Federation  than 
by  each  colony  for  itself. 

The  stimulus  to  be  given  to  industry  and  trade  by  sub- 
stituting one  great  community  for  six  smaller  ones. 
The  possibility  of  making  better  arrangements  for  the 
disposal  of  the  unappropriated  lands  belonging  to 
some  of  the  colonies  than  could  be  made  by  those 
colonies  for  themselves. 

There  was  in  these  arguments  something  to  move 
every  class  in  the  community.  To  the  commercial 
classes,  the  prospect  of  getting  rid  of  custom-houses  and 
of  rinding  a  large  free  market  close  at  hand  for  all  pro- 
ducts was  attractive ;  as  was  also  that  of  sweeping  away 
the  vexation  of  railway  rates  planned  in  the  interests  of 
each  colony  rather  than  for  the  common  benefit  of  trade. 
Large-minded  men,  thinkers  as  well  as  statesmen,  hoped 
that  a  wider  field  would  bring  a  loftier  spirit  into  public 
life.  The  working-classes  might  expect,  not  only  ad- 
vantages in  the  way  of  brisker  employment,  but  the  es- 
tablishment of  that  provision  for  old  age  and  sickness 
which  a  Government  covering  the  whole  country  and 
commanding  ample  resources  could  make  more  effi- 


Till]  M'sT/fMJ.[\   COMMONWEALTH  401 

ciently  and  on  more  uniform  lines  than  even  the  richest 
colony  could  do.  Some  of  these  grounds  for  union 
measure  the  distance  which  the  world  has  travelled  since 
1788.  Railways  are  far  older  than  was  self-government 
in  the  oldest  Australian  colony,  far  younger  than  the 
youngest  of  the  original  thirteen  American  States. 
Even  so  late  as  1867,  when  Canada  was  confederated, 
no  one  thought  of  suggesting  that  the  State  should  pro- 
vide old-age  pensions. 

The  opponents  of  Australian  Federation,  although 
they  came  more  and  more  to  feel  their  cause  hopeless, 
were  an  active  party,  including  many  influential  men. 
Besides  denying  that  the  benefits  just  enumerated  would 
be  attained,  they  dwelt  upon  the  additional  cost  which  a 
new  Government,  superadded  to  the  existing  ones,  must 
entail.  They  fanned  the  jealousies  which  naturally  exist 
between  small  and  large  communities,  telling  the  former 
that  they  would  be  overborne  in  voting,  and  the  latter 
that  they  would  suffer  in  purse ;  and  they  wound  up  with 
the  usual  and  often  legitimate  appeals  to  local  sentiment. 

The  arguments  drawn  from  considerations  of  expense 
and  from  local  jealousies  were  met  by  a  series  of  in- 
genious compromises  and  financial  devices  to  which 
both  the  larger  and  smaller  colonies  were  persuaded  to 
agree,  while  the  love  of  each  community  for  its  own  po- 
litical independence  was  overborne  by  the  rising  tide  of 
national  sentiment.  An  ambition  which  aspired  to  make 
Australia  take  its  place  in  the  world  as  a  great  nation, 
mistress  of  the  Southern  hemisphere,  had  been  growing 
for  some  time  with  the  growth  of  a  new  generation 
born  in  the  new  home,  and  was  powerfully  roused  by  the 
vision  of  a  Federal  Government  which  should  resemble 
that  of  the  United  States  and  warn  off  intruders  in  the 
Western  Pacific,  as  the  American  Republic  had  an- 
nounced by  the  pen  of  President  Monroe  that  she  would 
do  on  the  North-American  Continent.  The  same  na- 
tionally self-assertive  spirit  and  desire  for  expansion 
which  has  recently  spurred  four  great  European  Powers 
26 


402  THE  AUSTRALIAN  COMMONWEALTH 

into  a  rivalry  for  new  colonial  possessions,  and  which 
in  1899  made  the  United  States  forswear  its  old-estab- 
lished principles  of  policy,  has  been  astir  in  the  mind  of 
the  Australians.  It  had  been  stimulated  by  the  example 
of  a  similar  spirit  in  the  mother  country,  and  by  the  com- 
pliments which  the  English  had  now  begun  to  lavish 
upon  their  colonies.  It  had  gained  strength  with  the 
growth  to  manhood  of  a  generation  born  in  Australia, 
and  nurtured  in  Australian  patriotism.  Such  a  patriot- 
ism, finding  no  fit  scope  in  devotion  to  the  particular 
colonies,  longed  for  a  larger  ideal.  It  supplied  the  mo- 
tive force  needed  to  create  a  national  union.  Without 
it,  all  the  sober  reasonings  which  counselled  confedera- 
tion might  have  failed  to  prevail.  No  equally  strenuous 
or  forward-reaching  spirit  moved  the  Canadians  in 
1867,  nor  are  the  traces  of  such  a  spirit  conspicuous  in 
the  American  debates  of  1787-9.  Some  men  were  then 
solicitous  for  liberty,  others  for  order  and  good  govern- 
ment, but  of  imperial  greatness  in  the  present  sense  of 
the  term  little  was  said.  Liberty  and  peace  at  home, 
not  military  strength  and  domination  abroad,  were  the 
national  ideals  of  those  days. 

The  history  of  the  Federation  movement  illustrates 
the  truth  that  a  great  change  is  seldom  effected  in  po- 
litics save  by  the  coincidence  of  two  moving  forces — 
the  prospect  of  material  advantage  and  the  power  of 
sentiment.  In  every  community  there  are  many  who 
can  be  moved  only  by  one  or  other  of  these  two  forces, 
and  nearly  every  man  responds  better  to  the  first  if  he 
can  be  warmed  by  the  second.  In  the  American  de- 
bates of  1788-9  feeling  was  mostly  arrayed  against  the 
proposed  federation,  though  reason  was  almost  entirely 
for  it.  Reason  prevailed,  but  prevailed  with  far  more 
difficulty  than  the  cause  of  Federalism,  with  less  cogent 
economic  grounds  behind  it,  prevailed  in  Australia. 

Like  America  in  1787,  Australia  was  fortunate  in  hav- 
ing a  group  of  able  statesmen,  most  of  whom  were  also 
lawyers,  and  so  doubly  qualified  for  the  task  of  prepar- 


Till]   Al  sTh'ALIAN  COMM<>\  \\i:.\  7/777  403 

ing  a  constitution.  Their  learning,  their  acuteness,  and 
their  mastery  of  constitutional  principles  can  best  be 
appreciated  by  any  one  who  will  peruse  the  interesting 
debates  in  the  two  Conventions.  They  used  the  experi- 
ence of  the  mother  country  and  of  their  predecessors  in 
the  work  of  federation-making,  but  they  did  so  in  no 
slavish  spirit,  choosing  from  the  doctrines  of  England 
and  from  the  rules  of  America,  Switzerland,  and  Canada 
those  which  seemed  best  fitted  to  the  special  conditions 
of  their  own  country.  And  like  the  founders  of  the 
American  and  Canadian  Unions,  they  were  not  only 
guided  by  a  clear  practical  sense,  but  were  animated  by 
a  spirit  of  reasonable  compromise,  a  spirit  which  pro- 
mises well  for  the  conduct  of  government  under  the  in- 
strument which  they  have  framed. 

IV.  THE  CONDITIONS  FOR  A  FEDERAL 
COMMONWEALTH. 

Before  examining  the  provisions  of  the  Constitution 
which  is  bringing  the  hitherto  independent  colonies  into 
one  political  body,  it  is  well  to  consider  for  a  moment 
the  territory  and  the  inhabitants  that  are  to  be  thus 
united. 

The  total  area  of  Australia  is  nearly  3,000,000  square 
miles,  not  much  less  than  that  of  Europe.  Of  this  a 
comparatively  small  part  is  peopled  by  white  men,  for 
the  interior,  as  well  as  vast  tracts  stretching  inland 
from  the  south-western  and  north-western  coasts,  is 
almost  rainless,  and  supplies,  even  in  its  better  districts, 
nothing  more  than  a  scanty  growth  of  shrubs.  Much 
of  it  is  lower  than  the  regions  towards  the  coast,  and 
parts  are  but  little  above  sea-level.  It  has  been  hitherto 
deemed  incapable  of  supporting  human  settlement,  and 
unfit  even  for  such  ranching  as  is  practised  on  arid 
tracts  in  western  North  America  and  in  South  Africa. 
Modern  science  has  brought  so  many  unexpected  things 
to  pass,  that  this  conclusion  may  prove  to  have  been 


404  THE  AUSTRALIAN  COMMONWEALTH 

too  hasty.  Still  no  growth  of  population  in  the  interior 
can  be  looked  for  corresponding  to  that  which  marked 
the  development  of  the  United  States  west  of  the  Alle- 
ghanies  in  the  beginning  of  the  nineteenth  century. 

Of  the  six  Australian  colonies,  one,  Tasmania,  occu- 
pies an  island  of  its  own,  fertile  and  beautiful,  but  rather 
smaller  (26,000  square  miles)  than  Scotland  or  South 
Carolina.  It  lies  150  miles  from  the  coast  of  Victoria. 
Western  Australia  covers  an  enormous  area  (nearly 
1,000,000  square  miles,  between  three  and  four  times 
the  size  of  Texas),  and  South  Australia,  which  stretches 
right  across  the  Continent  to  the  Gulf  of  Carpentaria, 
is  almost  as  large  (a  little  over  900,000  square  miles). 
Queensland  is  smaller,  with  668,000  square  miles ;  New 
South  Wales,  on  the  other  hand,  has  only  310,000  square 
miles  (i.e.  is  rather  larger  than  Sweden  and  Norway  and 
about  the  size  of  California,  Oregon  and  Washington 
put  together);  Victoria  only  87,000  (i.e.  is  as  large  as 
Great  Britain  and  a  little  larger  than  Idaho).  The  coun- 
try (including  Tasmania)  stretches  from  north  to  south 
over  32°  of  latitude  (11°  S.  to  43°  S.),  a  wider  range 
than  that  of  the  United  States  (lat.  49°  N.  to  26°  N.). 
There  are  thus  even  greater  contrasts  of  climate  than 
in  the  last-named  country,  for  though  the  Tasmanian 
winters  are  less  cold  than  those  of  Montana,  the  tropi- 
cal heats  of  North  Queensland  and  the  shores  of  the 
Gulf  of  Carpentaria  exceed  any  temperature  reached  in 
Louisiana  and  Texas.  Fortunately,  Northern  Australia 
is,  for  its  latitude,  comparatively  free  from  malarial  fe- 
vers. But  it  is  too  hot  for  the  out-door  labour  of  white 
men.  In  these  marked  physical  differences  between  the 
extremities  of  the  Continent  there  lie  sources  whence 
may  spring  divergences  not  only  of  material  interests 
but  ultimately  even  of  character,  divergences  compa- 
rable to  those  which  made  the  Gulf  States  of  the  Ameri- 
can Union  find  themselves  drawn  apart  from  the  States 
of  the  North  Atlantic  and  Great  Lakes. 

It  must  also  be  noted  that  the  great  central  wilderness 


THE  AUSTRALIAN  COMMONWEALTH  405 

cuts  off  not  only  the  tropical  north  and  north-west,  but 
also  the  more  temperate  parts  of  the  west  from  the 
thickly  peopled  regions  of  the  south-west.  Western 
Australia  communicates  with  her  Eastern  sisters  only 
by  a  long  sea  voyage1.  She  is  almost  in  the  position 
held  by  California  when,  before  the  making  of  the  first 
transcontinental  railway,  people  went  from  New  York 
to  San  Francisco  via  Panama.  Nor  is  there  much  pro- 
spect that  settlements  will  arise  here  and  there  in  the  in- 
tervening desert. 

The  population  of  the  Continent,  which  has  now 
reached  nearly  4,000,000,  is  very  unequally  distributed. 
The  three  colonies  of  widest  area,  Western  Australia, 
South  Australia,  and  Queensland,  have  none  of  them 
500,000  inhabitants.  Tasmania  has  about  170,000.  Two 
others,  New  South  Wales  and  Victoria,  have  each 
more  than  i, 000,000 2.  This  disparity  ranges  them  for 
political  purposes  into  two  groups,  the  large  ones  with 
2,500,000  people  in  two  colonies,  and  the  small  ones  with 
1,500,000  in  four  colonies. 

Against  these  two  sets  of  differences,  physical  and 
social,  which  might  be  expected  to  induce  an  opposition 
of  economic  and  political  interests,  there  is  to  be  placed 
the  fact  that  the  Australian  colonies  are  singularly  ho- 
mogeneous in  population.  British  North  America  is 
peopled  by  a  French  as  well  as  by  an  English  race, 
British  South  Africa  by  a  Dutch  race  as  well  as  an  Eng- 
lish. But  Australia  is  purely  British.  Even  the  Irish 
and  the  Scotch,  though  both  races  are  specially  prone  to 
emigrate,  seem  less  conspicuous  than  they  are  in  Ca- 
nada 3.  Australia  is  to-day  almost  as  purely  English  as 
Massachusetts,  Connecticut,  and  Virginia  were  in  1776, 

1  It  is  four  days'  voyage  from  Adelaide,  the  capital  of  S.  Australia,  to  Perth,  the 
capital  of  W.  Australia. 

2  Two-fifths  of  the  population  of  Victoria  live  in  Melbourne,  one-fourth  of  the 
population  of  New  South  Wales  in  Sydney. 

3  In  1891,  out  of  that  part  of  the  total  population  of  Australia  which  had  been 
born  in  the  United  Kingdom,  about  one-fourth  had  been  born  in  Ireland  and  one- 
sixth  in  Scotland.    Of  the  whole  population  of  Australia,  95  per  cent,  are  of  British 
stock. 


406  THE  AUSTRALIAN  COMMONWEALTH 

and  probably  more  English  than  were  the  thirteen  origi- 
nal States  taken  as  a  whole.  In  this  fact, the  colonies 
found  not  only  an  inducement  to  a  closer  union,  but  a  se- 
curity against  the  occurrence  of  one  of  the  dangers  which 
most  frequently  threatens  the  internal  concord  of  a  fede- 
ration. Race  antagonisms  have  troubled  not  only  Ca- 
nada and  South  Africa  but  the  United  Kingdom  itself, 
and  they  now  constitute  the  gravest  of  the  perils  that  sur- 
round the  Austro-Hungarian  monarchy. 

Among  the  other  favouring  conditions  may  be  enu- 
merated the  use  of  one  language  only  (whereas  in  Ca- 
nada and  in  South  Africa  two  are  spoken),  the  existence 
of  one  system  of  law,  the  experience  of  the  same  form 
of  political  institutions,  a  form  modelled  on  that  which 
the  venerable  traditions  of  the  mother  country  have  en- 
deared to  Englishmen  in  all  parts  of  the  world.  It  has 
also  been  a  piece  of  good  fortune  that  religion  has  not 
interposed  any  grounds  for  jealousy  or  division.  The 
population  of  Australia  is  divided  among  various  Chris- 
tian denominations  very  much  as  the  population  of  Eng- 
land is,  and  the  chief  difference  between  the  old  and  the 
new  country  lies  in  the  greater  friendliness  to  one  an- 
other of  various  communions  which  exists  in  the  new 
country,  a  happy  result  due  partly  to  the  absence  of  any 
State  Establishment  of  religion,  and  partly  to  that  sense 
of  social  equality  which  is  strong  enough  to  condemn 
any  attempt  on  the  part  of  one  religious  body  to  claim 
social  superiority  over  the  others. 

Finally,  there  is  the  unique  position  which  Australia 
occupies.  She  has  a  perfect  natural  frontier,  because 
she  is  surrounded  by  the  sea,  an  island  continent,  so 
far  removed  from  all  other  civilized  nations  that  she  is 
not  likely  to  be  either  threatened  by  their  attacks  or 
entangled  in  their  alliances.  The  United  States  had, 
when  its  career  began,  British  possessions  on  the  north, 
French  and  Spanish  on  the  south.  But  the  tropical 
islands  which  Holland,  Germany  and  France  claim  as 
theirs  to  the  north  and  east  of  the  Australian  coasts  are 


THE  AUSTRALIAN  COMMONWEALTH  407 

cut  off  by  a  wide  stretch  of  ocean  l.  They  are  not  now, 
and  are  not  likely  at  any  time  we  can  foresee,  to  con- 
tain a  white  population  capable  of  disturbing  the  repose 
of  Australia.  Such  a  country  seems  made  for  one  na- 
tion, though  the  fact  that  its  settled  regions  lie  scattered 
round  a  vast  central  wilderness  suggests  that  it  is  better 
fitted  for  a  federation  than  for  a  government  of  the  uni- 
fied type.  But,  on  the  other  hand,  this  very  remoteness 
might,  in  removing  the  force  of  external  pressure,  have 
weakened  the  sense  of  need  for  a  federal  union  had  there 
not  existed  that  homogeneity  of  race  and  that  aspiring 
national  sentiment  to  which  I  have  adverted. 

Compare  these  conditions  with  those  of  the  three 
other  Federations.  The  thirteen  colonies  which  have 
grown  into  the  present  forty-five  States  of  the  American 
Union  lay,  continuous  with  one  another,  along  the  coast 
of  the  Atlantic.  England  held  Canada  to  the  north  of 
them,  France  held  the  Mississippi  Valley  to  the  west  of 
them,  and,  still  further  to  the  west,  Spain  held  the  coasts 
of  the  Pacific.  They  had  at  that  time  no  natural  boun- 
daries on  land ;  and  the  forces  that  drew  them  together 
were  local  contiguity,  race  unity,  and  above  all,  the  sense 
that  they  must  combine  to  protect  themselves  against 
powerful  neighbours  as  well  as  against  the  evils  which 
bad  become  so  painfully  evident  in  the  governments  of 
the  several  States.  Nature  prescribed  union,  though 
few  dreamt  that  Nature  meant  that  union  to  cover  the 
whole  central  belt  of  a  Continent.  In  the  case  of  Ca- 
nada, Nature  spoke  with  a  more  doubtful  voice.  She 
might  rather  have  appeared  to  suggest  that  this  long 
and  narrow  strip  of  habitable  but  only  partially  inhabited 
land,  stretching  from  the  Gulf  of  St.  Lawrence  to  Puget 
Sound,  should  either  all  of  it  unite  with  its  mighty  neigh- 
bour to  the  south,  or  should  form  three  or  four  separate 
groups,  separated  by  intervening  wildernesses.  Poli- 
tical feelings  however,  compounded  of  attachment  to 
Britain  and  a  proud  resolve  not  to  be  merged  in  a  rival 

1  The  nearest  point  of  Dutch  New  Guinea  is  about  150  miles  from  Australia. 


408  THE  AUSTRALIAN  COMMONWEALTH 

power  which  had  done  nothing  to  conciliate  them,  led 
the  Canadians  to  form  a  confederation  of  their  own, 
which  Nature  has  blessed  in  this  point  at  least,  that  its 
territories  are  so  similar  in  climate  and  in  conditions  for 
industrial  growth  that  few  economic  antagonisms  seem 
likely  to  arise  among  them.  Switzerland,  however,  is 
the  most  remarkable  case  of  a  Federation  formed  by 
historical  causes  in  the  very  teeth,  as  it  might  seem, 
of  ethnological  obstacles.  Three  races,  speaking  three 
languages,  have  been  so  squeezed  together  by  formida- 
ble neighbours  as  to  have  grown  into  one.  The  help  of 
Nature  has  however  been  given  in  providing  them  with 
mountain  fastnesses  from  which  the  armies  of  those 
neighbours  could  be  resisted;  and  the  physical  charac- 
ter of  the  country  has  joined  with  the  traditions  of 
a  splendid  warlike  heroism  in  creating  a  patriotism 
perhaps  more  intense  than  any  other  in  the  modern 
world. 

V.  THE  CONSTITUTION  AS  A  FEDERAL  INSTRUMENT. 

In  examining  any  Federal  Constitution,  it  is  con- 
venient to  consider  the  system  it  creates  first  as  a  Fede- 
ration, i.e.  a  contrivance  for  holding  minor  communi- 
ties together  in  a  greater  one ;  and  then  as  a  Frame  of 
Government,  composed  of  organs  for  discharging  the 
various  functions  of  administration.  Although  the  for- 
mer of  these  influences  the  latter,  because  the  federal 
character  of  a  State  prescribes  to  some  extent  the  cha- 
racter of  that  State's  governmental  machinery,  it  con- 
duces to  clearness  to  deal  with  these  two  aspects  sepa- 
rately. Accordingly  I  begin  with  the  federal  aspect  of 
the  Constitution. 

Federations  are  of  two  kinds.  In  some,  the  supreme 
power  of  the  Central  Government  acts  upon  the  com- 
munities which  make  it  up  only  as  communities.  In 
others  this  power  acts  directly,  not  only  upon  the  com- 
ponent communities,  but  also  upon  the  individual  citi- 


Till-:  Al'xT/tMJA  \  COMMOyWSALTH  409 

zens  as  being  citizens  of  the  Nation  no  less  than  of  the 
several  communities.  The  former  kind  of  Federation 
may  be  described  as  really  a  mere  League  of  States ;  the 
latter  kind  is  a  National  as  well  as  a  Federal  State. 

The  Australian  Federation  is  of  this  latter  type.  So 
are  the  United  States,  the  Swiss  Confederation,  and  the 
Canadian  Federation.  It  was  however  to  the  former 
type  that  both  the  United  States  before  1788  and  Swit- 
zerland before  1848  belonged.  So  Germany  was  a  mere 
League  of  States  before  1866,  but  has  been  a  National 
as  well  as  Federal  State  since  1866  and  1871. 

The  essential  feature  of  this  latter  type,  with  which 
alone  we  are  here  henceforth  concerned,  consists  in  the 
existence  above  every  individual  citizen  of  two  authori- 
ties, that  of  the  State,  or  Canton  (as  in  Switzerland)  or 
Province  (as  in  Canada),  to  which  he  belongs,  and  that 
of  the  Nation,  which  includes  all  the  States,  and  operates 
with  equal  force  upon  all  their  citizens  alike.  Thus  each 
citizen  has  an  allegiance  which  is  double,  being  due  both 
to  his  own  particular  State  and  to  the  Nation.  He  lives 
under  two  sets  of  laws,  the  laws  of  his  State  and  the  laws 
of  the  Nation.  He  obeys  two  sets  of  officials,  those  of 
his  State  and  those  of  the  Nation,  and  pays  two  sets  of 
taxes,  besides  whatever  local  taxes  or  rates  his  city  or 
county  may  impose. 

Accordingly  the  character  of  each  and  every  Federa- 
tion depends  upon  the  distribution  of  powers  between 
the  Nation  and  the  several  States,  since  some  powers 
must  be  allotted  to  the  larger,  some  to  the  smaller 
entity.  With  regard  to  certain  powers  there  can  be  no 
doubt.  The  navy,  for  instance,  the  post-office,  the  con- 
trol of  all  foreign  relations,  must  obviously  be  assigned 
to  the  National  Government,  together  with  the  levying 
of  customs  duties  at  the  frontiers  and  the  raising  of  reve- 
nue for  the  purposes  above  mentioned.  On  the  other 
hand,  matters  of  an  evidently  local  nature,  such  as  police, 
prisons  and  asylums,  the  system  of  municipal  or  county 
administration,  with  the  power  of  taxing  for  these  pur- 


410  THE  AUSTRALIAN  COMMONWEALTH 

poses,  will  be  allotted  to  the  State  Governments.  But 
between  these  two  sets  there  lies  a  large  field  of  legisla- 
tion and  administration  which  may,  according  to  the 
circumstances  of  each  particular  country  and  the  wishes 
of  the  people  who  enact  their  constitution,  be  granted 
either  to  the  Nation  or  to  the  States.  The  law  of  mar- 
riage and  divorce,  for  instance1,  criminal  law1,  bank- 
ruptcy, the  traffic  in  intoxicating  liquors  2,  the  regulation 
of  railways  2,  the  provision  of  schools  or  universities  3, 
are  all  matters  which  have  both  a  national  and  a  local 
significance,  and  may  be  entrusted  either  to  the  National 
legislature  or  to  the  State  legislatures  according  as  one 
or  other  aspect  of  them  predominates  in  the  mind  of  the 
people. 

VI.  DISTRIBUTION  OF  POWERS  BETWEEN  NATION 
AND  STATES. 

Now  the  fundamental  question  in  the  distribution  of 
powers  between  the  Nation  and  the  States  is  this — To 
which  authority  does  the  unallotted  residue  of  powers 
belong?  It  has  been  found  that  no  distribution,  how- 
ever careful,  can  exhaust  beforehand  all  the  powers  that 
a  legislature  or  an  executive  may  possibly  have  to  exer- 
cise, and  it  therefore  becomes  essential  to  provide,  when- 
ever a  power  not  specifically  mentioned  needs  to  be  ex- 
ercised, whether  it  should  be  deemed  to  be  rightfully 
exerciseable  by  the  National  or  by  the  State  autho- 
rity. In  other  words,  which  of  these  authorities  is 
to  be  deemed  general  legatee  of  any  undistributed 
residue? 

This  question  has  been  answered  differently  by  dif- 
ferent Federations.  The  United  States  and  Switzerland 
leave  to  the  States  (to  which  they  had  belonged  pre- 

1  In  the  U.  S.  A.  a  State,  in  Canada  a  Federal  matter. 

3  In  Switzerland  a  Federal  matter,  in  the  U.  S.  A.  partly  a  Federal,  partly  a 
State  matter. 

3  In  the  U.  S.  A.  and  Germany  a  State  matter,  in  Switzerland  and  Canada  partly 
a  Federal  matter.; 


THE  AUSTRALIAN  COMMONWEALTH  411 

viously)  the  undistributed  powers.  Canada  (whose  Pro- 
vinces were  in  a  different  position)  bestows  them  upon 
the  National  (Dominion)  Government1.  The  question 
is  the  more  important,  because  it  creates  in  all  sorts  of 
doubtful  matters  a  presumption  in  favour  of  the  Na- 
tional Government  or  the  State  Governments,  as  the 
case  may  be.  And  it  is  specially  important  at  the  mo- 
ment of  creating  a  new  Federation,  because  one  of  the 
difficulties  always  then  experienced  is  to  induce  the 
States  to  resign  powers  they  have  hitherto  enjoyed. 
Hence  it  reassures  and  comforts  them  to  have  the  resi- 
due of  powers  not  specifically  distributed  left  still  in 
their  hands. 

The  Australians  have  followed  the  example  of  the 
United  States  and  Switzerland  rather  than  that  of  Ca- 
nada ;  and  they  have  done  so  for  the  sake  of  appeasing 
the  local  sentiment  of  the  several  colonies,  and  especially 
of  the  smaller  colonies,  who  naturally  feared  that,  as 
they  would  have  less  weight  than  their  larger  neighbours 
in  the  national  legislature,  they  would  be  in  more  danger 
of  being  subjected  to  laws  which  their  local  opinion  did 
not  approve.  Section  107  provides  that — 

'  Every  power  of  the  Parliament  of  a  Colony  which 
has  become  or  becomes  a  State  shall,  unless  it  is  by  this 
Constitution  exclusively  vested  in  the  Parliament  of  the 
Commonwealth  or  withdrawn  from  the  Parliament  of 
the  State,  continue  as  at  the  establishment  of  the  Com- 
monwealth, or  as  at  the  admission  or  establishment  of 
the  State  2,  as  the  case  may  be/ 

Comparatively  few  powers  of  legislation  are  '  exclu- 
sively vested  '  in  the  Commonwealth  Parliament ;  so  that 
upon  subjects  other  than  these  the  State  Parliaments 
retain  for  the  present  their  previous  power  to  legislate. 

1  SeeV.  S.  A.  Constitution,  Amendment  X  :  Constitution  of  Swiss  Confederation, 
Art.  3  :  British  North  American  Act  (1867),  sect.  91. 

2  These  words  are  used  to  cover  the  case  of  the  creation  and  admission  of  future 
States. 

The  name  '  State,'  which  the  Australians  have  substituted  for  '  Colonies,'  is  sig- 
nificant. It  imports  a  slightly  greater  independence  and  has  a  more  imposing  sound 
than  the  Canadian  term  '  Province.' 


412  THE  AUSTRALIAN  COMMONWEALTH 

But  as  it  is  also  provided  that  all  Acts  of  the  Com- 
monwealth Parliament,  within  the  range  of  the  powers 
granted,  shall  override  laws  of  any  State  Parliament, 
such  laws  as  the  latter  may  pass  upon  subjects  open 
to  both  legislatures  are  left  at  the  mercy  of  the  Com- 
monwealth Parliament,  which  may,  as  and  when  it  finds 
time  or  occasion,  pass  Acts  extinguishing,  or  modifying 
the  effect  of,  those  enacted  by  the  States. 

Now  the  range  of  powers  granted  to  the  National  or 
Commonwealth  Parliament  is  very  wide,  wider  than  that 
of  Congress  or  of  the  Swiss  National  Assembly,  or  even 
of  the  Dominion  Parliament  in  Canada.  I  need  not  enu- 
merate the  powers  granted,  forty-two  in  number,  for 
they  will  be  found  in  sects.  52  and  53  of  the  Australian 
Constitution.  Among  them  are  the  following,  which  are 
not  specifically  given  to,  and  nearly  all  of  which  are  not 
even  claimed  by,  the  United  States  Congress : — Powers 
to  take  over  State  railways,  and  to  construct  and  extend 
railways  (with  the  consent  of  the  State  in  which  the 
railway  lies),  to  control  telegraphs  and  telephones  and 
also  trading  and  financial  corporations,  to  take  over 
State  debts1,  to  legislate  on  marriage  and  divorce,  on 
bills  of  exchange  and  promissory  notes,  on  invalid  and 
old-age  pensions,  on  arbitration  and  conciliation  in  trade 
disputes  (where  these  extend  beyond  one  State),  on 
bounties  on  the  production  or  export  of  goods,  on  the 
service  and  execution  throughout  the  Commonwealth 
of  the  civil  and  criminal  process  and  judgements  of  the 
State  Courts.  If  these  powers  come  to  be  all  put  in  force 
they  may  leave  for  State  action  a  narrower  and  less  in- 
teresting field  than  it  enjoys  in  the  United  States,  where 
nevertheless  the  State  legislatures  are  bodies  of  no  great 
account,  seldom  enlisting  the  services  of  men  of  first- 
rate  capacity. 

1  Canada  directs  the  Dominion  to  take  over  the  Provincial  debts  existing  at  the 
time  of  the  Union.  In  the  U.  S.  A.  the  war  debts  of  the  States  were  taken  over  by 
the  first  Congress  of  the  Union. 


THE  AUSTRALIAN  COMMONWBALTH  413 

VII.  CONSTITUTIONAL  POSITION  OF  THE  AUSTRA- 
LIAN STATES. 

The  Australian  Constitution,  like  that  of  the  United 
States,  assumes  the  States  to  be  already  organized  com- 
munities, and  contains  nothing  regarding  their  consti- 
tutions. The  case  of  Canada  was  different,  because  there 
the  previous  government  of  the  Upper  and  Lower  Pro- 
vinces, which  had  been  one,  had  to  be  cut  in  two,  and  ar- 
rangements made  for  duly  constituting  the  two  halves. 
But  in  the  case  of  Australia,  the  pre-existing  constitu- 
tions of  the  Colonies,  granted  by  the  Imperial  Govern- 
ment at  various  times,  go  on  unchanged,  subject  only 
to  the  supersession  of  some  of  their  functions  by  the 
Commonwealth,  and  to  one  or  two  specifically  men- 
tioned restrictions.  That  these  restrictions  are  compa- 
ratively few  may  be  partly  ascribed  to  that  aversion 
which  the  English  everywhere  show  to  this  kind  of  safe- 
guard against  the  misuse  of  legislature  power.  The 
omnipotence  of  the  British  Parliament  seems  to  have 
fostered  the  notion  that  all  Parliaments  ought  to  be  free 
to  do  wrong  as  well  as  to  do  right.  The  only  things  from 
which  a  State  is  disabled  are  the  keeping  of  a  naval  or 
military  force  (except  with  the  consent  of  the  Common- 
wealth Parliament),  coining  money,  and  making  any- 
thing but  gold  and  silver  coin  legal  tender1.  A  State 
is  not,  as  are  the  American  States,  forbidden  to  grant 
titles  of  nobility,  or  to  pass  any  ex  post  facto  law  or  law 
'  impairing  the  obligation  of  contracts.'  That  no  such 
prohibitions  exist  in  Canada  may  be  ascribed  to  the  fact 
that  in  Canada  the  National  or  Dominion  Government 
has  the  right  of  vetoing  laws  passed  by  provincial 
legislatures,  so  that  improper  legislation  can  be  in  this 
way  checked.  The  power  is  not  often  exercised  in  Ca- 
nada, but  when  exercised  has  sometimes  led  to  friction. 
This  plan,  however,  is  neither  so  respectful  to  the  Pro- 

1  See  sections  114  and  115  of  Constitution,  and  compare  Art.  I.  sect.  10  of  Consti- 
tution of  U.  S.  A. 


414  THE  AUSTRALIAN   COMMONWEALTH 

viirces  nor  so  conformable  to  general  principles  as  is 
the  American  plan,  which  leaves  the  States  subject  only 
to  the  restrictions  imposed  by  the  Constitution,  restric- 
tions which  ipso  litre  annul  a  law  attempting  to  transgress 
them.  And  the  Australians  have  wisely  followed  the 
American  rather  than  the  Canadian  precedent.  The 
Australians  have,  to  be  sure,  in  reserve  a  power  to 
which  nothing  similar  exists  in  America,  viz.  the  right 
of  the  British  Crown  at  home  to  veto  legislation.  Rarely 
as  this  right  is  put  in  force,  it  might  conceivably  be  used 
at  the  instance  of  the  National  Government  to  avert  an 
undesirable  conflict  between  State  statutes  and  National 
statutes.  Note  further  that  each  Australian  State  is 
left  as  free  to  amend  its  own  constitution  as  it  was 
before,  subject  of  course  to  the  veto  of  the  British 
Crown,  but  to  no  interference  by  the  Commonwealth, 
whereas  in  Canada  acts  of  the  Provincial  legislatures 
amending  their  constitutions  are  subject  to  the  veto 
of  the  Dominion  Government  as  representing  the 
Crown. 

The  omission  of  any  provision  similar  to  the  famous 
and  much  litigated  clause  which  debars  an  American 
State  legislature  from  passing  any  law  impairing  the 
obligation  of  contracts  is  especially  noteworthy.  That 
clause,  introduced  by  the  Philadelphia  Convention  in 
order  to  check  the  tendency  of  some  reckless  States  to 
get  rid  of  their  debts,  produced  in  course  of  time  un- 
expectedly far-reaching  results,  from  some  of  which 
American  legislatures  and  courts  have  made  ingenious 
attempts  to  escape.  It  has  indeed  been  thought  that 
several  subsequent  decisions  of  the  Supreme  Court  are 
not  easily  reconcileable  with  the  famous  judgement  in 
the  Dartmouth  College  Case  (A.D.  1818),  in  which  the 
full  effect  of  this  clause  was  for  the  first  time  displayed. 
That  effect  has  been  to  fetter  legislation  in  ways  which 
are  found  so  inconvenient  in  practice  that  they  are 
acquiesced  in  only  because  many  State  legislatures  are 
in  the  United  States  objects  of  popular  distrust.  No 


THE  AUSTRALIAN  COMMONWEALTH  415 

corresponding  distrust  seems  to  be  felt  in  the  British 
colonies,  and  therefore  the  Australians  have  not  deemed 
any  such  prohibition  needful,  following  the  example  of 
the  British  House  of  Commons,  which  in  1893  rejected 
a  similar  clause  when  moved  as  an  amendment  to  the 
Irish  Home  Rule  Bill  of  that  year. 

In  another  point  the  Australian  States  have  been 
treated  with  respect.  In  each  of  them  the  nominal  ex- 
ecutive head  has  hitherto  been  a  Governor  appointed 
by  the  British  Crown.  This  was  the  case  in  Canada 
prior  to  1867:  but  when  the  Canadian  Federation  was 
formed,  the  appointment  of  the  Governors  of  the  several 
provinces  was  entrusted  to  the  Governor-General  of  the 
Dominion,  that  is  to  say,  to  the  Dominion  Cabinet  by 
whose  advice  the  Governor-General,  being  a  sort  of 
constitutional  monarch,  is  guided.  In  practice,  there- 
fore, these  governorships  have  become  rewards  be- 
stowed upon  leading  party  politicians.  The  Austra- 
lians wisely  (as  most  Englishmen  will  think)  avoided 
this  plan.  Neither  did  they  adopt  the  American  method 
of  letting  the  people  of  each  State  elect  the  Governor, 
a  method  unsuited  to  government  on  the  Cabinet  sys- 
tem, because,  as  the  State  Governor  is  under  that  system 
only  a  nominal  head  of  the  Executive  (the  Cabinet  being 
the  real  Executive),  there  was  no  good  reason  for  set- 
ting the  people  to  choose  him,  and  good  reasons  against 
doing  so,  inasmuch  as  popular  elections  are  invariably 
fought  on  party  lines.  Accordingly  the  Australians  have 
preferred  to  let  him  continue  to  be  appointed  by  the 
Home  Government,  and  to  allow  him  to  communicate 
directly  with  the  Colonial  Office  in  London.  His  Mini- 
sters are  indeed  described  in  the  Constitution  (sect.  44) 
as  being  '  the  Queen's  Ministers.' 


416  THE  AUSTRALIAN  COMMONWEALTH 

VIII.   DIFFERENCES  FROM  THE  UNITED  STATES 
AND  CANADIAN  FEDERATIONS. 

Four  other  remarkable  divergences,  from  both  the 
American  and  the  Canadian  Federal  systems,  remain 
to  be  mentioned. 

One  relates  to  the  judiciary.  In  the  United  States 
there  is  a  complete  system  of  Federal  Courts  ramify- 
ing all  over  the  Union  and  exercising  exclusive  juris- 
diction in  all  cases  arising  under  Federal  statutes,  as 
well  as  in  a  number  of  other  matters  specified  in  Art. 
III.  sect.  2  of  the  Constitution.  But  the  State  Courts 
remain  quite  independent  in  all  State  matters,  and  de- 
termine the  interpretation  of  the  State  Constitutions 
and  of  all  State  statutes,  nor  does  any  appeal  lie  from 
them  to  the  Federal  Courts.  In  Canada  this  was  not 
thought  necessary,  so  there  the  same  set  of  Courts 
deals  with  questions  arising  under  Federal  statutes  and 
with  those  arising  under  Provincial  Statutes,  and  the 
Supreme  Court  of  Canada  receives  appeals  from  all  other 
Courts.  This  is  less  conformable  to  theory  than  the 
United  States  plan,  but  does  not  seem  to  have  worked 
ill.  The  danger  that  Courts  sitting  in  the  Provinces 
would,  under  the  influence  of  local  feeling,  pervert  Fede- 
ral law  was  not  serious  in  Canada  (though  a  similar 
danger  was  feared  in  the  United  States  in  1787),  and 
indeed  all  the  Canadian  judges  are  appointed  by  the  Do- 
minion Government,  a  further  illustration  of  the  pre- 
ponderance which  the  Nation  has  over  the  Provinces. 
The  Australians  have  taken  a  middle  course.  They  have 
established  a  Federal  Supreme  Court,  to  be  called  '  The 
High  Court  of  Australia,'  and  have  taken  power  for  their 
Parliament  to  create  other  Federal  Courts.  So  far,  they 
follow  the  United  States  precedent.  But  they  have 
given  power  to  the  Commonwealth  Parliament  to  invest 
State  Courts  with  federal  jurisdiction,  thereby  allowing 
those  Courts  to  be,  as  in  Canada,  both  State  and  Federal. 
And  they  have  also  allowed  an  appeal  from  all  State 


THE  AUSTRALIAN  COMMONWEALTH  417 

Courts  to  the  Federal  High  Court.  By  this  plan  the 
States  are  more  directly  connected  with  and  subordinate 
to  the  National  Government  than  they  are  in  the  United 
States.  The  Australian  scheme  has  one  great  incidental 
advantage.  In  the  United  States  the  law  of  different 
States  may  and  does  differ,  not  only  in  respect  of  the 
difference  between  the  statutes  of  one  and  the  statutes 
of  another,  but  also  in  respect  of  questions  of  common 
law  untouched  by  statutes.  The  Supreme  Court  of 
Massachusetts  may,  for  instance,  take  a  different  view 
of  what  constitutes  fraud  at  common  law  from  that  taken 
by  the  Supreme  Court  of  Pennsylvania,  and  there  is  no 
Court  of  Appeal  above  both  these  Courts  to  bring  their 
views  into  accord.  This  has  not  happened  to  any  great 
extent  in  Australia,  because  the  British  Privy  Council 
has  entertained  appeals  from  all  its  Courts,  and  it  will 
happen  still  less  in  future,  because  the  Federal  High 
Court  will  be  close  at  hand  to  settle  questions  on 
which  the  Courts  of  different  States  may  have  been  in 
disaccord. 

A  second  point  shows  how  much  less  powerful  the 
sentiment  of  State  sovereignty  has  been  in  Australia 
than  it  was  in  the  United  States.  By  an  amend- 
ment (xi)  to  the  American  Constitution  made  in  1798 
it  is  expressly  declared  that  no  State  can  be  sued  by 
a  private  plaintiff.  But  Australia  expressly  grants 
jurisdiction  in  such  cases  to  its  Federal  High  Court 
(sect.  75). 

A  third  point  is  the  curious  and  novel  power  given 
to  a  State  of  referring  matters  to  the  Commonwealth 
Parliament,  and  to  that  Parliament  of  thereupon  legis- 
lating on  such  matters  (sect.  51  (xxxvii)).  Under  this 
provision  (which  is  not  to  be  found  in  the  Canadian  Con- 
stitution 1)  there  is  no  department  of  State  law  where- 
with the  National  legislature  may  not  be  rendered  com- 
petent to  deal.  It  may  be  usefully  employed  to  secure 
uniformity  of  legislation  over  all  Australia  on  a  number 

1  But  see  section  94  of  the  Canadian  Constitution. 
27 


418  THE  AUSTRALIAN  COMMONWEALTH 

of  subjects  not  within  the  specifically  allotted  field  of  the 
Commonwealth  Parliament. 

Finally,  the  Commonwealth  Parliament  may  grant 
financial  assistance  to  any  State,  and  may  take  over  the 
whole  or  a  part  of  its  debts  as  existing  at  the  establish- 
ment of  the  Commonwealth  \.  Provisions  such  as  these 
imply,  or  will  involve  if  put  in  practice,  a  relation  be- 
tween the  National  Government  and  the  States  closer 
than  that  which  exists  in  America. 

To  complete  this  account  of  the  relation  of  the  Na- 
tion to  the  States,  let  it  be  noted  that  a  State  may  sur- 
render any  part  of  its  territory  to  the  Commonwealth, 
and  that  the  Commonwealth  is  bound  to  protect  each 
State  against  invasion  or,  on  the  application  of  the  Ex- 
ecutive of  the  State,  against  domestic  violence  2.  This 
latter  provision  is  drawn  from  the  United  States  con- 
stitution 3,  though  in  America  it  is  from  the  State  legisla- 
ture, if  then  in  session,  that  the  application  for  protec- 
tion ought  to  come.  Australia  is  right  in  her  variation, 
because  in  her  States  the  Legislature  acts  through  the 
Executive.  Neither  provision  occurs  in  the  Constitu- 
tion of  Canada,  which  assigns  military  and  naval  defence 
exclusively  to  the  Dominion  Government,  and  makes 
itself  responsible  for  the  maintenance  of  order  every- 
where. In  Switzerland  the  management  of  the  army, 
in  which  all  citizens  are  bound  to  serve,  is  divided  be- 
tween Cantons  and  Confederation,  the  supreme  control 
remaining  with  the  latter  (Artt.  18-22).  The  Confedera- 
tion is  bound  to  protect  a  Canton  against  invasion  and 
disorders,  and  may  even  itself  intervene  if  the  Executive 
of  the  Canton  cannot  ask  it  on  its  own  motion  (Artt.  16 
and  17).  Australia,  as  we  have  seen,  allows  the  States  to 
maintain  a  force  with  the  consent  of  the  Commonwealth; 
and  this  is  permitted  by  the  American  Constitution  also. 

1  Sect.  105.  a  Sect.  119.  3  Art.  II.  sect.  3,  and  Art.  IV.  sect.  4. 


THE  AUSTRALIAN  COMMONWEALTH  419 


IX.  THE  CONSTITUTION  AS  A  FRAME  OF  NATIONAL 
GOVERNMENT. 

We  may  now  pass  on  to  consider  the  National  Gov- 
ernment, the  construction  whereof  occupies  by  far  the 
greater  part  of  the  Constitution,  which,  while  it  left  the 
States  pretty  much  as  they  were,  had  here  to  build  up 
a  new  system  from  the  ground. 

The  first  point  to  be  examined  relates  to  the  limita- 
tions imposed  on  the  National  Government  as  against 
the  citizens  generally,  since  I  have  already  dealt  with  the 
limitations  on  its  powers  as  against  the  States.  Here  a 
remarkable  divergence  from  the  American  Constitution 
is  disclosed.  When  that  instrument  was  enacted,  the 
keenest  suspicion  and  jealousy  was  felt  of  the  action  of 
the  Government  to  be  established  under  it.  It  was 
feared  that  Congress  might  become  an  illiberal  oligarchy 
and  the  President  a  new  George  the  Third.  Accordingly 
great  pains  were  taken  to  debar  Congress  from  doing 
anything  which  could  infringe  the  primordial  human 
rights  of  the  citizen.  Some  restrictions  are  contained 
in  the  original  Constitution :  others  fill  the  first  nine 
amendments  which  were  passed  two  or  three  years  later, 
as  a  part  of  the  arrangements  by  which  the  acceptance 
of  the  Constitution  was  secured.  And  down  till  our  own 
time  every  State  Constitution  in  America  has  continued 
to  contain  a  similar  '  Bill  of  Rights  '  for  the  protection 
of  the  citizens  against  abuse  of  legislative  power.  The 
English,  however,  have  completely  forgotten  these  old 
suspicions,  which,  when  they  did  exist,  attached  to  the 
Crown  and  not  to  the  Legislature.  So  when  Englishmen 
in  Canada  or  Australia  enact  new  Constitutions,  they 
take  no  heed  of  such  matters,  and  make  their  legislature 
as  like  the  omnipotent  Parliament  of  Britain  as  they 
can.  The  Canadian  Constitution  leaves  the  Dominion 
Parliament  unfettered  save  by  the  direction  (sect.  54) 
that  money  shall  not  be  appropriated  to  any  purpose 


420  THE  AUSTRALIAN   COMMONWEALTH 

that  has  not  been  recommended  to  the  House  of  Com- 
mons by  the  Executive,  a  direction  embodying  English 
practice,  and  now  adopted  by  Australia  also.  And  the 
Australian  Constitution  contains  but  one  provision 
which  recalls  the  old-fashioned  Bill  of  Rights,  viz.  that 
which  forbids  the  Commonwealth  to  '  make  any  law  for 
establishing  any  religion  or  for  imposing  any  religious 
observance  or  for  prohibiting  the  free  exercise  of  any 
religion/  The  Swiss  Constitution,  influenced  by  French 
and  American  models,  is  in  this  respect  more  archaic, 
for  it  imposes  a  series  of  disabilities  on  its  Legislature 
in  the  interest  of  individual  freedom  (sectt.  39,  49,  54-59). 
This  diversity  of  attitude  between  the  English  on  the 
one  hand  and  both  the  Americans  and  the  Swiss  on  the 
other  is  a  curious  instance  of  the  way  in  which  usage  and 
tradition  mould  a  nation's  mind.  Parliament  was  for  so 
long  a  time  the  protector  of  Englishmen  against  an  arbi- 
trary Executive  that  they  did  not  form  the  habit  of  tak- 
ing precautions  against  the  abuse  of  the  powers  of  the 
Legislature ;  and  their  struggles  for  a  fuller  freedom 
took  the  form  of  making  Parliament  a  more  truly  popu- 
lar and  representative  body,  not  that  of  restricting  its 
authority. 

The  point  just  examined  is  one  which  arises  in  all 
Rigid  Constitutions,  whether  Federal  or  Unitary.  But 
the  next  point  is  one  with  which  only  Federations  are 
concerned ;  and  it  is  one  in  which  all  the  great  Federa- 
tions agreee.  All  have  adopted  the  same  method  of 
providing  both  for  the  predominance  of  the  majority  of 
the  people  considered  as  one  Nation,  and  for  the  main- 
tenance of  the  rights  of  the  States  considered  as  distinct 
communities.  The  Americans  invented  this  method: 
the  Swiss,  the  Canadians,  the  Germans,  and  now  the 
Australians,  have  imitated  them.  This  method  is  to 
divide  the  Legislature  into  two  Houses,  using  one  to  re- 
present the  whole  people  on  the  basis  of  numbers,  and 
using  the  other  to  represent  the  several  States  on  the 
basis  (except  in  Germany)  of  their  equality  as  autono- 


THE  .UNY'AM /,/.!. Y   OOMMONWBALTS  421 

mous  communities.  It  was  this  device  that  made  Fede- 
ration possible  in  the  United  States,  for  the  smaller 
States  would  not  have  foregone  their  independence  in 
reliance  upon  any  weaker  guarantee. 

X.  THE  LEGISLATURE. 

The  Australian  scheme  provides  (sectt.  7-23)  for  an 
Upper  House  or  Senate  of  thirty-six  members,  six  from 
each  State,  and  a  House  of  Representatives  (sectt.  24-40) 
of  seventy-five  members,  elected  on  a  basis  of  popula- 
tion, so  that  forty-nine  members  will  come  from  the 
two  large  States,  New  South  Wales  and  Victoria,  and 
twenty-six  from  the  four  small  States.  No  Original 
State  is  ever  to  have  less  than  five. 

The  equal  representation  of  the  six  Original  States  is 
always  to  be  maintained,  but  the  number  of  Senators 
may  be  increased,  and  when  new  States  come  to  be 
formed,  the  Parliament  may  allot  to  them  such  number 
of  Senators  as  it  thinks  fit.  Senators  sit  for  six  years, 
and  do  not  all  retire  at  the  same  time.  These  features 
are  taken  from  the  Constitution  of  the  United  States, 
which,  as  already  observed,  has  been  a  model  for  subse- 
quent Federal  Upper  Houses.  But  there  are  remark- 
able variations  in  the  Australian  scheme. 

1.  In  the  United  States  each  newly-created  State  re- 
ceives as  a  matter  of  right  its  two  Senators.    In  Austra- 
lia the  Commonwealth  may  allot  such  number  as  it 
thinks  fit. 

2.  In  the  United  States  one-third  of  the  Senate  retires 
every  two  years.     In  Australia  one-half  retires  every 
three  years. 

3.  In  the  United  States  the  President  of  the  Senate 
is  the  Vice-President  of  the  United  States,  chosen  by 
the  people1.     In  Australia,  the  Senate  is  to  choose  its 
own  President. 

1  I.e.  practically  by  the  people,  though  formally  by  a  body  of  electors  elected 
for  that  purpose. 


422  THE  AUSTRALIAN  COMMONWEALTH 

4.  In  the  United  States  the  quorum  is  one  more  than 
a  half  of  the  total  number ;  in  Australia  one-third  of  the 
total  number. 

5.  In  the  United  States  the  Legislatures  of  the  several 
States  elect  the  Senators.     In  Australia  the  Senators 
are  elected  by  the  people  of  the  State. 

This  last  point  is  one  of  great  interest.  Tocqueville, 
writing  in  1832,  attributed  (erroneously,  as  the  sequel 
has  shown)  the  excellence  of  the  American  Senate  to 
the  method  of  election  by  the  State  Legislatures  1.  Since 
his  days  the  American  Senate  has  declined ;  and  so  far 
from  this  mode  of  election  having  tended  to  sustain  its 
character,  the  general,  though  not  unanimous,  opinion 
of  the  wise  in  America  deems  the  Senate  to  be  injured 
by  it,  and  desires  a  change  to  the  method  of  election  by 
direct  popular  vote.  It  was  partly  because  the  Austra- 
lian Convention  had  become  aware  of  this  tendency  of 
American  opinion  that  they  rejected  the  existing  Ameri- 
can plan ;  nor  is  it  impossible  that  the  Americans  them- 
selves may  alter  their  system,  which  gives  greater  oppor- 
tunities for  intrigue  and  the  use  of  money  than  popular 
election  would  be  likely  to  afford.  In  Australia,  the 
Senators  are  in  the  first  instance  to  be  elected  by  the 
people,  each  State  voting  as  one  electorate,  but  this 
may  be  altered  (e.g.  to  a  system  of  district  elections)  by 
the  Parliament  of  the  Commonwealth,  or  failing  its 
action,  by  the  Parliament  of  a  State.  It  will  be  interest- 
ing to  see  what  experiments  are  tried  and  how  they 
work.  District  voting  may  give  different  results  from 
a  general  State  vote,  and  a  party  for  the  moment  domi- 
nant may  choose  the  plan  that  best  suits  it. 

6.  In  the  United  States  the  Senate  is  an  undying  body, 
perpetually   renewed   by   fresh   elections,   never   losing 
more  than  one-third  of  its  members  at  any  one  time. 
In  Australia  the   Senate   may  be   dissolved   in   case   a 
deadlock   should   arise   between   it   and   the   House   of 
Representatives. 

1  See  as  to  this,  Essay  VI,  p.  336  and  p.  352. 


THE  AUSTRALIAN  COMMONWEALTH  423 

The  Senate  is  the  sheet-anchor  of  the  four  small 
States.  Commanding  a  majority  in  it,  they  have  con- 
sented to  acquiesce  in  the  great  preponderance  which 
their  two  larger  neighbours  possess  in  the  House  of 
Representatives.  The  numbers  of  the  latter  House  are 
to  be  always  as  nearly  as  practicable  double  those  of  the 
Senate,  a  point  whose  importance  will  presently  appear. 

The  House  is  to  continue  for  three  years  (subject  of 
course  to  dissolution),  a  term  intermediate,  though  in- 
clining in  the  democratic  direction,  between  the  two 
years  of  the  American  Congress  and  the  seven  (practi- 
cally six)  years  of  the  British  House  of  Commons.  The 
Canadian  term  is  five  years.  Until  the  Commonwealth 
Parliament  otherwise  provides,  the  electoral  suffrage 
is  to  be  (as  in  the  United  States)  the  suffrage  prescribed 
by  State  law  for  the  election  of  members  of  the  more 
numerous  State  House,  and  it  is  expressly  provided, 
doubtless  with  a  view  to  the  fact  that  women's  suffrage 
already  exists  in  two  colonies,  that  no  law  shall  prevent 
a  State  voter  from  voting  at  Commonwealth  elections. 
So  far  from  securing,  as  does  the  United  States  Consti- 
tution, that  no  person  shall  be  excluded  on  the  ground 
of  race  from  the  suffrage  1,  Australia  has  expressly  pro- 
vided that  persons  belonging  to  a  particular  race  may 
be  excluded,  for  she  declares  (sect.  25)  that  in  such  case 
the  excluded  race  is  not  to  be  reckoned  among  the  popu- 
lation of  the  State  for  the  purposes  of  an  allotment 
of  representatives.  Plural  voting  is  forbidden.  The 
quorum  of  members  is  a  mean  between  the  inconve- 
niently large  quorum  (one-half)  of  the  American,  and  the 
very  small  one  (forty)  of  the  British  House.  The  seat  of 
any  Senator  or  member  of  the  House  becomes  ipso  facto 
vacant  if  he  fails  (without  permission)  to  attend  any 
session  for  two  continuous  months.  No  person  having 
any  pecuniary  interest  in  any  agreement  with  the  public 
service  (except  as  member  of  an  incorporated  company 
of  at  least  twenty-five  persons),  or  holding  any  office  of 

i  See  Amendment  XV  to  the  Constitution. 


424  THE  AUSTRALIAN  COMMONWEALTH 

profit  under  the  Crown,  can  sit  in  either  House,  unless 
he  be  a  Minister  either  of  the  Commonwealth  or  of  a 
State.  The  exception  is  noteworthy,  not  only  because 
it  is  framed  with  a  view  to  the  establishment  of  Cabinet 
Government,  but  also  because  it  implies  that  a  man  may, 
contrary  to  American  and  Canadian  usage,  be  at  the 
same  time  both  an  executive  official  of  a  State  and  also 
a  member  of  the  Federal  Legislature.  It  would  appear 
that  women  are  eligible  to  membership  of  either  House. 
Every  Senator  and  Representative  is  to  receive  a  salary, 
fixed  for  the  present  at  £400  ($2,000)  a  year. 

XI.  THE  EXECUTIVE. 

The  Executive  is  to  consist  of  the  Governor-General 
and  the  Ministers.  To  the  great  convenience  of  the 
Australian  people,  the  head  of  the  Executive  does  not 
need  to  be  elected  either  by  popular  vote  (as  in  the 
United  States)  or  by  the  Chambers,  as  in  France  and 
Switzerland.  He  is  nominated  by  the  British  Crown, 
and  holds  office  so  long  as  the  Crown  pleases,  receiving 
a  salary  fixed,  for  the  present,  at  £10,000  ($50,000)  a 
year  (exactly  the  salary  of  the  American  President).  He 
has  an  Executive  Council,  modelled  on  the  British  Privy 
Council  (though  the  name  Privy  Council  is  not  used 
as  it  is  in  the  Canadian  Constitution),  and  from  it  he 
chooses  a  number  of  Ministers  (fixed  for  the  present  at 
seven)  who  are  to  administer  the  several  departments 
of  the  public  service.  They  must  be  members  of  one  or 
other  House  of  Parliament — a  remarkable  provision,  for 
though  this  is  a  British  practice,  that  practice  has  never 
been  embodied  in  any  positive  rule.  As  the  Governor- 
General  is  only  a  constitutional  figure-head,  these  Mini- 
sters will  in  fact  constitute  the  ruling  executive  of  the 
Commonwealth. 


THE  AUSTRALIAN  COMMONWEALTH  425 

XII.  THE  JUDICIARY. 

The  Judiciary  is  to  consist  in  the  first  instance  of  a 
Federal  High  Court  (containing  a  Chief  Justice  and  at 
least  two  other  judges)  capable  of  exercising  both  origi- 
nal jurisdiction  in  certain  sets  of  cases,  and  also  appel- 
late jurisdiction  not  only  from  single  Federal  Judges  and 
inferior  Federal  Courts,  but  also  from  the  Supreme 
Courts  of  the  States.  Power  is  taken  both  to  establish 
lower  Federal  Courts  and  to  invest  State  Courts  with 
federal  jurisdiction.  But  besides  this  Judiciary  proper, 
there  is  created  a  second  Court  for  dealing  with  cases 
relating  to  trade  and  commerce,  under  the  name  of  the 
Inter-State  Commission  (sect.  101).  This  remarkable 
and  very  important  institution  has  doubtless  been  sug- 
gested by  the  United  States  Inter-State  Commerce  Com- 
mission created  by  Congress  some  eighteen  years  ago 
in  order  to  deal  with  railway  and  water  traffic  between 
the  States.  Its  functions  will  be  half-administrative, 
half-judicial,  and  in  questions  of  pure  law  an  appeal 
will  lie  from  it  to  the  High  Court,  while  a  guarantee 
for  its  independence  is  found  in  the  clause  which  de- 
clares that  its  members  shall  not  be  removed  during 
their  seven  years'  term  of  office.  All  Federal  Judges 
are  to  be  appointed  by  the  Governor-General,  that  is 
to  say,  by  the  Executive  Ministry.  All  trials  (on  in- 
dictment) for  any  offence  against  the  laws  of  the  Com- 
monwealth shall  be  by  jury,  and  held  in  the  State  where 
the  alleged  offence  was  committed.  The  judicial  estab- 
lishments of  the  States  remain  unaffected,  and  the 
judges  thereof  will  continue  to  be  appointed  by  the 
State  Executives. 

In  determining  the  functions  of  the  High  Court  there 
arose  an  important  question  which  seemed  for  a  moment 
to  threaten  the  whole  scheme  of  Federation.  The  draft 
Constitution  which  the  Convention  had  prepared  and 
which  the  people  had  approved  by  their  vote  provided 
that  questions  arising  on  the  interpretation  of  the  Con- 


426  THE  AUSTRALIAN  COMMONWEALTH 

stitution  as  to  the  respective  limits  of  the  powers  of  the 
Commonwealth  and  of  the  States,  or  as  to  the  respec- 
tive limits  of  the  constitutional  powers  of  any  two  or 
more  States,  should  be  adjudicated  upon  by  the  High 
Court  of  the  Commonwealth,  and  that  no  appeal  should 
lie  from  its  decision  to  the  Queen  in  Council  (i.e.  to  the 
Judicial  Committee  of  the  Privy  Council  in  England, 
which  is  the  Supreme  Court  of  Appeal  from  the  British 
Colonies  and  India),  '  unless  the  public  interest  of  some 
part  of  Her  Majesty's  dominions,  other  than  the  Com- 
monwealth or  a  State,  are  involved.'  When  the  draft 
reached  England  to  be  embodied  in  a  Bill,  the  British 
Government  took  exception  to  this  provision  as  tending 
to  weaken  the  tie  between  the  mother  country  and  the 
colonies.  There  were  many  in  England  who  thought 
that  it  was  not  in  the  interest  of  Australia  herself  that 
she  should  lose,  in  questions  which  might  involve  poli- 
tical feeling  and  be  complicated  with  party  issues,  the 
benefit  of  having  a  determination  of  such  questions  by 
an  authority  absolutely  impartial  and  unconnected  with 
her  domestic  interests  and  passions.  How  much  better 
(they  argued)  would  it  have  been  for  the  United  States 
at  some  critical  moments  could  they  have  had  constitu- 
tional disputes  adjudicated  on  by  a  tribunal  above  all 
suspicion  of  sectional  or  party  bias,  since  it  would  have 
represented  the  pure  essence  of  legal  wisdom,  an  unim- 
peachable devotion  to  legal  truth ! 

To  this  the  Australians  replied  that  the  experience 
of  the  United  States  had  shown  that  in  constitutional 
questions  it  was  sometimes  right  and  necessary  to  have 
regard  to  the  actual  conditions  and  needs  of  the  nation ; 
that  constitutional  questions  were  in  so  far  political  that 
where  legal  considerations  were  nearly  balanced,  the 
view  ought  to  be  preferred  which  an  enlightened  regard 
for  the  welfare  of  the  nation  suggested ;  that  a  Court 
sitting  in  England  and  knowing  little  of  Australia  would 
be  unable  to  appreciate  all  the  bearings  of  a  constitu- 
tional question,  and  might,  in  taking  a  purely  technical 


THE  AUSTRALIAN   COMMONWEALTH  427 

and  possibly  too  literal  a  view  of  the  Constitution,  give 
to  the  Constitution  a  rigidity  which  would  check  its 
legitimate  expansion  and  aggravate  internal  strife. 
Australia  must — so  they  pursued — be  mistress  of  her 
own  destinies,  and  as  it  is  she  that  had  framed  and  pro- 
cured the  enactment  of  this  Constitution,  so  by  her 
ought  the  responsibility  to  be  borne  of  working  it  on 
its  judicial  as  well  as  its  executive  and  legislative  side. 
Not  only  was  this  better  for  Australia  herself,  but  it 
would  be  more  conducive  to  the  maintenance  of  the 
connexion  between  the  Commonwealth  and  the  mother 
country. 

After  some  wavering,  the  British  Government,  per- 
ceiving the  risk  of  offending  Australian  sentiment,  gave 
way.  They  dropped  in  Committee  of  the  House  of  Com- 
mons the  alteration  which  they  had  introduced  into 
the  Australian  draft,  substituting  for  it  an  amendment 
which,  while  slightly  varying  the  original  terms  of  the 
draft,  practically  conceded  the  point  for  which  the  Au- 
stralian Delegates,  sent  to  England  to  assist  in  passing 
the  measure,  had  contended.  The  Act  as  passed  pro- 
vides that  no  appeal  shall  lie  to  the  Crown  in  Council 
upon  the  constitutional  questions  above-mentioned  un- 
less the  High  Court  itself  shall,  being  satisfied  that  the 
question  is  one  which  ought  to  be  determined  by  the 
Privy  Council,  certify  to  that  effect.  In  all  other  such 
cases  its  judgement  will  be  final. 

Appeals  to  the  Privy  Council  in  questions  other  than 
constitutional  will  continue  to  lie  from  the  Supreme 
Courts  of  the  States  (with  the  alternative  of  an  appeal 
to  the  High  Court)  and  from  the  High  Court  itself,  when 
special  leave  is  given  by  the  Privy  Council.  The  Com- 
monwealth Parliament  may  limit  the  matters  in  which 
such  leave  may  be  asked,  but  the  laws  imposing  such 
limitations  are  to  be  reserved  for  the  pleasure  of  the 
Crown. 

The  scheme  of  judicature  above  outlined  follows  in 
the  main  the  model  contained  in  the  American  Consti- 


428  THE  AUSTRALIAN  COMMONWEALTH 

tution.  It  does  not  draw  the  line  between  State  and 
Federal  matters  and  courts  so  sharply,  for  appeals  are 
to  lie  from  State  Courts  in  all  matters  alike,  and  State 
Courts  may  receive  jurisdiction  in  Federal  matters.  On 
the  other  hand,  it  is  more  conformable  to  principle  than 
either  the  Canadian  plan,  which  provides  no  Federal 
Courts  save  the  Supreme  Court  and  gives  the  appoint- 
ment of  all  judges  alike  to  the  Dominion  Government, 
or  the  Swiss  plan,  which  refers  questions  of  conflict  be- 
tween the  Nation  and  the  Cantons,  or  as  to  the  constitu- 
tionality of  Federal  laws,  not  to  the  Judiciary  at  all,  but 
to  the  Federal  Legislature.  Broadly  speaking,  the  Au- 
stralian High  Court  will  have  to  fill  such  a  place  and  dis- 
charge such  functions  as  have  been  filled  and  discharged 
in  America  by  that  exalted  tribunal  which  Chief  Justice 
John  Marshall  and  other  great  legal  luminaries  have 
made  illustrious.  In  working  out  the  provisions  of  the 
Constitution  by  an  expansive  interpretation,  cautious 
but  large-minded,  it  may  render  to  Australia  services 
not  unworthy  to  be  compared  with  those  which  America 
has  gratefully  recognized. 

XIII.  WORKING  OF  THE  FRAME  OF  GOVERNMENT. 
THE  CABINET. 

Now  let  us  see  how  this  Frame  of  Government,  which 
I  have  briefly  outlined  in  its  salient  features,  is  intended 
to  work. 

Its  essence  lies  in  a  matter  which  is  not  indicated  by 
any  express  provision,  the  dependence  of  the  Executive 
upon  the  Legislature.  Herein  it  differs  fundamentally 
from  the  American  and  Swiss  systems.  It  reproduces 
the  English  system  of  what  is  called  Cabinet  or  Respon- 
sible Government ;  that  is  to  say,  a  Government  in  which 
the  Executive  instead  of  being,  as  in  America,  an  inde- 
pendent authority,  directly  created  by  the  people  and 
amenable  to  the  people  only,  is  created  by  and  respon- 
sible to  the  Legislature.  As  and  when  the  British  colo- 


THE  AUSTRALIAN  COMMONWEALTH  429 

nies  respectively  obtained  self-governing  institutions, 
each  of  them  adopted  this  scheme,  since  it  was  the  one 
familiar  to  them  at  home:  and  to  it  they  seem  all  de- 
termined to  adhere. 

Its  distinctive  features  are  these. 

The  nominal  head  of  the  Executive,  in  Britain  the 
Crown,  in  Australia  the  Governor-General  as  represent- 
ing the  Crown,  is  permanent,  and  is  not  responsible  to 
the  Legislature,  because  he  acts  not  on  his  own  views, 
but  upon  the  advice  of  his  Ministers. 

The  Ministers  are  responsible  to  the  Legislature 
which  virtually  chooses  them,  and  they  depend  upon  its 
confidence  for  their  continuance  in  office. 

The  Ministers  are  however  not  wholly  at  the  mercy 
of  the  Legislature,  because  they  may  dissolve  it,  that  is 
to  say,  may  appeal  to  the  people,  in  the  hope  that  the 
people  will  elect  a  new  Legislature  which  will  support 
them.  This  kind  of  government  accordingly  rests  on 
a  balance  of  three  authorities,  the  Executive,  the  Legis- 
lature, and  the  People,  the  people  being  a  sort  of  arbiter 
between  Ministry  and  Parliament.  As  the  Ministry  can 
at  any  moment  appeal  to  the  people,  the  threat  of  ap- 
pealing puts  pressure  upon  the  Parliament,  and  keeps  a 
majority  cohesive.  In  the  existence  of  this  power  of 
sudden  dissolution  there  lies  a  marked  difference  from 
the  American  scheme,  which  some  one  has  called  As- 
tronomical, because  the  four  years'  term  of  office  of 
the  Executive  and  the  two  years'  term  of  the  Legis- 
lature are  both  fixed  by  the  earth's  course  round  the 
sun. 

I  have  spoken  of  the  Legislature  as  the  authority  to 
which  the  Ministry  is  responsible.  But  what  is  the 
Legislature?  In  England,  although  Parliament  con- 
sists of  two  Houses,  the  Minister-making  power  resides 
solely  in  the  House  of  Commons.  Being  elective,  the 
House  of  Commons  has  behind  it  the  moral  weight  of 
the  people  and  the  prestige  of  many  victories.  Being 
the  holder  of  the  purse,  it  has  the  legal  machinery  for 


430  THE  AUSTRALIAN  COMMONWEALTH 

giving  effect  to  its  will,  since  without  supplies  admini- 
stration cannot  be  carried  on.  Accordingly,  though  the 
existence  of  two  often  discordant  Houses  may  arrest  or 
modify  legislation  in  Britain,  it  does  not  affect  the  ex- 
ecutive conduct  of  affairs,  save  on  the  rare  occasions 
when  immediate  legislation  is  deemed  indispensable  by 
the  Executive.  The  same  remark  applies  to  Canada. 
There  also  one  finds  two  Houses,  but  the  Senate,  being 
a  nominated  and  not  a  representative  body,  holds  an 
entirely  secondary  place.  The  Ministry  may  disregard 
a  vote  of  want  of  confidence  passed  by  it,  just  as  in  Eng- 
land they  disregard  an  adverse  vote  of  the  House  of 
Lords.  In  Australia,  however,  things  will  be  quite  dif- 
ferent. There  the  Senate  has  been  constituted  as  a  re- 
presentative body,  elected  by  the  peoples  of  the  States ; 
and  as  the  protector  of  the  rights  and  interests  of  the 
States  it  holds  functions  of  the  highest  importance.  Its 
powers  (save  in  one  point  to  be  presently  mentioned) 
are  the  same  as  those  of  the  House.  In  whom  then  does 
the  power  of  making  and  unmaking  ministries  reside? 
Wherever  one  finds  two  assemblies,  one  finds  them  na- 
turally tending  to  differ;  and  this  will  be  particularly 
likely  to  occur  where,  as  in  Australia,  they  are  con- 
structed by  different  modes  of  election.  Suppose  a  vote 
of  no  confidence  in  a  particular  Ministry  is  carried  in 
one  House  and  followed  by  a  vote  of  confidence  passed 
in  the  other?  Is  the  Ministry  to  resign  because  one 
House  will  not  support  it  ?  It  retains  the  confidence  of 
the  other;  and  if  it  does  resign,  and  a  new  Ministry 
comes  in,  the  House  which  supported  it  may  pass  a 
vote  of  no  confidence  in  those  who  have  succeeded  it. 

The  problem  is  one  which  cannot  arise  either  under 
the  English  or  under  the  American  system.  Not  under 
the  English,  because  the  two  Houses  are  not  co-ordi- 
nate, the  House  of  Commons  being  much  the  stronger. 
Not  under  the  American,  because,  although  the  Houses 
are  co-ordinate,  neither  House  has  the  power  of  displac- 
ing the  President  or  his  Ministers.  It  is  therefore  a  new 


THE  AUSTRALIAN  COMMONWEALTH  431 

problem,  and  one  which  directly  results  from  the  attempt 
to  combine  features  of  both  schemes,  the  Cabinet  system 
of  England  and  the  co-ordinate  Senate,  strong  be- 
cause it  represents  the  States,  which  a  Federal  system 
prescribes. 

XIV.  PROVISIONS  AGAINST  DEADLOCKS. 

This,  however,  is  only  one,  though  perhaps  the  most 
acute,  of  the  difficulties  that  arise  from  the  existence  of 
two  co-ordinate  Houses.  Their  differences  upon  ques- 
tions of  legislation  are  always  liable  to  produce  dead- 
locks. These  annoying  phenomena  occur  in  England, 
though  there  the  House  of  Lords,  except  upon  Irish 
questions,  usually  gives  way  (even  without  a  dissolution 
of  Parliament),  because  it  is  afraid  of  incensing  the  peo- 
ple and  thereby  bringing  about  its  own  destruction  if 
it  continues  to  resist  the  national  will.  In  Irish  ques- 
tions the  Upper  House  has  been  apt  to  assume  that  the 
people  of  England  and  Scotland  are  not  sufficiently  in- 
terested to  resent  very  keenly  its  difference  from  the 
Commons.  In  the  United  States  there  is  no  remedy  for 
such  deadlocks.  They  have  to  be  endured,  at  whatever 
cost.  The  resistance  of  the  Senate  to  various  plans  sug- 
gested by  the  House  for  dealing  with  the  slavery  ques- 
tion may  be  reckoned  among  the  causes  which  brought 
on  the  War  of  Secession.  The  Australian  colonies  them- 
selves have  had  frequent  experience  of  deadlocks  in 
matters  of  legislation  between  the  two  Houses,  for  in 
every  colony  there  have  been  two  Houses,  though  in 
every  colony  it  is  the  more  popular  House  which  has 
controlled  the  Executive. 

The  difficulties  I  have  indicated  were  fully  before  the 
minds  of  the  statesmen  who  sat  in  the  two  Conventions. 
An  ingenious  device  has  been  contrived  for  dealing  with 
them  (sect.  57).  When  the  House  passes  a  law  and  the 
Senate  disagrees,  the  House  may  pass  it  again  after 
three  months,  and  if  the  Senate  still  disagrees,  the  Gov- 


432  THE  AUSTRALIAN  COMMONWEALTH 

ernor-General  may  thereupon  dissolve  both  House  and 
Senate  together,  unless  the  Parliament  is  within  six 
months  of  its  natural  end  by  effluxion  of  time.  If  after 
such  dissolution  the  new  House  again  passes  the  mea- 
sure, and  the  Senate  once  more  disagrees,  the  Governor 
may  convene  a  joint  sitting  of  both  Houses.  If  the  pro- 
posed law  is  then  passed  by  an  absolute  majority  of  the 
whole  Parliament  so  convened  in  joint  sitting,  it  shall 
be  taken  to  have  been  duly  passed  by  both  Houses. 

This  method  involves  the  expenditure  of  a  good  deal 
of  time  and  the  worry  of  a  double  general  election,  one 
for  the  House  and  one  for  the  Senate.  But  it  may  prove 
to  be  the  best  method  of  solving  a  problem  which  neither 
Britain  nor  the  United  States  has  yet  attempted  to  solve, 
and  which  certainly  needs  solution.  The  reader  who  re- 
members that  the  numbers  of  the  House  have  been  fixed 
to  be  always  double  those  of  the  Senate,  will  now  see 
how  necessary  such  a  provision  was  in  order  to  secure 
that  in  this  final  trial  of  strength  between  Senate  and 
House  the  principle  of  State  rights  and  the  principle  of 
population  shall  each  have  its  due  recognition.  Should 
these  two  principles  come  into  collision,  should,  for  in- 
stance, all  the  members  from  the  four  small  States  be  of 
one  mind  and  all  the  members  from  the  two  large  States 
of  another  mind,  the  principle  of  population  will  prevail, 
for  in  the  two  Houses  sitting  together,  the  large  States 
will  have  sixty-one  votes  (twelve  senators  and  forty-nine 
representatives),  whereas  the  small  States  will  have  only 
fifty  (twenty-four  senators  and  twenty-six  representa- 
tives). Such  a  conjuncture  may  however  never  arise. 

XV.  RELATIONS  OF  THE  Two  HOUSES. 

The  question  remains  which  of  the  two  Houses  will 
hold  the  place  of  the  British  House  of  Commons  as  de- 
termining the  tenure  of  office  by  Ministries.  Upon  this 
question  light  may  be  cast  by  the  provisions  with  regard 
to  money  bills.  The  Constitution  enacts  (sect.  53)  that 


THE  AUSTRALIAN  COMMONWEALTH  433 

all  bills  appropriating  revenue  or  imposing  taxation 
must  originate  in  the  House,  and  that  the  Senate  may 
not  amend  taxing  bills,  or  those  '  appropriating  money 
for  the  ordinary  annual  services  of  the  Government,' 
though  it  may  return  such  bills  to  the  House  suggesting 
certain  amendments  in  them.  The  Senate  may  however 
reject  such  bills.  As  this  scheme,  which  somewhat  re- 
sembles that  of  the  American  Constitution1,  itself  sug- 
gested by  the  practice  of  England,  seems  to  throw  upon 
the  House  the  primary  function  of  providing  money  for 
the  public  service,  and  thus  the  primary  control  of  the 
national  exchequer,  it  would  seem  that  Ministers,  un- 
able without  money  to  carry  on  that  service,  must  stand 
or  fall  by  a  vote  of  the  House  and  not  by  a  vote  of  the 
Senate.  Yet  the  Senate,  though  it  cannot  take  the  first 
steps  for  granting  money,  can  withhold  money ;  and  if 
it  does  so  in  order  to  get  rid  of  a  Ministry  it  dislikes, 
nothing  short  of  the  deadlock  provision  above  described 
can  be  invoked.  Nor  can  the  expedient  of  mixing  up  a 
number  of  different  taxing  provisions  in  one  Bill,  or 
inserting  other  matter  in  appropriation  Bills  ('tacking*), 
be  resorted  to,  for  these  are  expressly  prohibited  by  the 
Constitution  (sectt.  54,  55).  Possibly  in  practice  the 
Houses  will  frequently  agree  to  let  the  accustomed  ser- 
vices of  the  year  be  provided  for  without  much  contro- 
versy, and  will  reserve  their  serious  conflicts  for  new 
proposals  regarding  taxation  or  appropriation. 

Australians  evidently  expect  that  the  usage  hitherto 
prevailing  in  all  the  Colonies  of  letting  the  Ministry  be 
installed  or  ejected  by  the  larger  House  will  be  fol- 
lowed. Nevertheless  the  relations  of  the  Commonwealth 
Houses  are  so  novel  and  peculiar,  that  the  experience 
of  the  new  Government  in  working  them  out  will  deserve 
to  be  watched  with  the  closest  attention  by  all  students 
of  politics.  Englishmen  in  particular  have  good  reason 

1  In  the  U.  S.  A.,  however,  the  Senate  may  and  does  amend  both  revenue-rais- 
ing and  appropriation  bills,  and  indeed  frequently  prevails  against  the  House  in 
the  quarrels  which  arise  over  these  matters. 


434  THE  AUSTRALIAN  COMMONWEALTH 

for  doing  so,  because  England,  when  she  has  substi- 
tuted a  representative  Second  Chamber  for  her  present 
theoretically  indefensible  House  of  Lords,  will  have  to 
devise  some  means  for  avoiding  or  solving  deadlocks  be- 
tween such  a  Chamber  and  the  House  of  Commons. 

Some  high  Australian  authorities  have  appeared  to 
doubt  whether  two  co-ordinate  Houses  can  be  made  to 
work  along  with  Cabinet  Government.  They  observe 
that  although  there  may  be  sometimes  a  willingness  to 
make  compromises  for  the  sake  of  the  public  service, 
there  is  also  in  all  governments,  and  certainly  not  least 
in  those  of  the  United  States  and  the  British  Colonies, 
a  tendency  to  press  every  legal  right  to  its  furthest  limit, 
even  if  the  machine  should  be  stopped  thereby.  Were 
such  stoppages  to  become  frequent,  Australia  might, 
they  think,  be  driven  to  amend  her  Constitution  by  so 
far  disjoining  the  Executive  from  the  Legislature  as  to 
give  it  something  of  the  permanence  it  enjoys  in  Amer- 
ica and  Switzerland1. 

The  relations  of  the  Senate  to  the  House  may  largely 
depend  on  factors  still  undetermined.  One  of  these  is 
the  growth  of  population.  Should  the  small  Colonies 
grow  rapidly,  their  representation  in  the  House  would 
before  long  be  fairly  proportionate  to  that  which  they 
enjoy  in  the  Senate,  so  that  the  balance  of  parties  might, 
so  far  as  the  size  of  States  is  concerned,  tend  to  be  nearly 
the  same  in  both  Houses.  Another  is  the  character  of 
the  controversies  which  will  arise.  These  may  not  be 
such  as  to  set  the  small  States  against  the  large  ones, 
and  the  three  party  organizations,  which  are  already 
strong,  though  they  possess  no  such  Machine  System  as 
America  enjoys,  may  find  their  support  pretty  equally  in 
all  or  most  of  the  States,  so  that  the  balance  of  parties 

1  It  was  suggested  in  the  Convention  by  Mr.  Playford  (then  Prime  Minister  of 
South  Australia)  that  the  two  Houses  sitting  together  might  appoint  the  Executive 
Ministry,  but  this  plan  deviated  too  far  from  British  Colonial  practice  to  find  ac- 
ceptance. A  similar  suggestion  was  made  by  Sir  John  Cockburn  in  the  Sydney 
Convention  in  1891.  See  his  speech  in  an  interesting  volume  published  by  him  en- 
titled Australian  Federation  (p.  139). 


THE  AUSTRALIAN  COMMONWEALTH  435 

may  in  practice  be  found  to  differ  but  little  in  the  Senate 
from  what  it  is  in  the  House.  Thus  these  particular 
wheels  or  shafts  of  the  constitutional  machine,  which  are 
deemed  less  able  than  others  to  bear  a  severe  strain, 
may  not  for  a  long  while  to  come  have  any  severe  strain 
thrown  upon  them. 

Another  thing  which  may  affect  the  relations  of  the 
two  Houses  is  the  comparative  attractions  which  each 
will  have  for  high  political  capacity.  In  the  United 
States  the  Senate  became,  within  thirty  years  from  the 
establishment  of  the  Constitution,  an  assembly  much 
stronger,  through  the  eminence  of  its  members,  than 
was  the  House  of  Representatives.  As  its  term  of  mem- 
bership was  longer  (six  years  against  two  years),  and 
as  it  had  certain  quasi-executive  functions  in  connexion 
with  foreign  relations  and  appointments,  men  of  ability 
preferred  it  to  the  House,  and  the  House  constantly 
saw  its  best  talent  drawn  off  to  its  rival.  The  Senate 
has  to-day  no  such  intellectual  ascendency  as  it  had 
then,  but  capable  men  still  migrate  to  it  when  they  can 
from  the  House  of  Representatives.  If  the  House  estab- 
lishes in  Australia,  as  it  will  apparently  do,  its  sole  right 
to  make  and  unmake  Ministries,  it  will  be  the  more 
tempting  field  for  ambition :  yet  something  will  depend 
upon  the  amount  of  genius  and  character  which  the 
Senate  attracts,  for  the  presence  of  these  in  abundant 
measure  will  give  it  weight  with  the  nation. 

It  has  been  suggested  in  Australia  that  the  Senate 
with  its  thirty-six  members  is  too  small.  The  Senate 
of  the  United  States  however  began  with  twenty-six; 
and  it  has  been  a  great  advantage  to  that  body  that  its 
original  numbers  were  small,  for  traditions  more  digni- 
fied than  those  of  the  tumultuous  House  were  formed, 
and  a  somewhat  stronger  sense  of  personal  responsibility 
was  developed  just  because  the  individual  was  not  lost 
in  a  crowd. 


436  THE  AUSTRALIAN  COMMONWEALTH 

XVI.   MISCELLANEOUS  PROVISIONS. 

Questions  of  trade  and  finance  fill  a  chapter  of  the 
Constitution  (sectt.  81-105) ;  and  it  was  indeed  these 
questions,  next  to  the  issue  between  the  large  and  the 
small  States,  that  gave  most  trouble  to  those  who 
framed  the  instrument.  It  is  provided  that  the  collec- 
tion and  control  of  all  duties  of  customs  and  excise 
shall  pass  to  the  Commonwealth,  but  that  not  more 
than  one-fourth  thereof  shall,  for  ten  years  at  least,  be 
retained  by  the  Commonwealth,  the  other  three-fourths 
being  paid  over  to  the  several  States,  or  applied  to  pay- 
ment of  the  interest  on  their  respective  debts,  should 
these  debts  be  assumed  by  the  Commonwealth.  This 
arrangement  was  deemed  needful  to  supply  the  States 
with  funds  for  defraying  their  administrative  expenses 
and  the  interest  on  their  debts,  seeing  that  the  chief  part 
of  their  revenue  arose  from  customs  and  excise,  the 
five  which  prepared  the  Constitution,  except  New  South 
Wales,  having  adopted  a  protective  policy.  Bounties 
may  be  given  either  by  the  Commonwealth,  or  by  the 
States  with  its  consent.  There  are  provisions  regard- 
ing the  collection  of  the  customs,  the  control  of  railways 
and  settlement  of  railway  rates,  the  use  of  rivers  for  ir- 
rigation and  water  storage,  and  the  State  debts,  but  as 
these  are  largely  temporary,  and  have  little  special  in- 
terest for  the  student  of  constitutions,  important  as  they 
are  to  Australian  industries,  I  mention  them  only  to 
show  how  elaborately  the  scheme  of  union  has  been 
worked  out,  and  on  how  many  perplexing  topics,  settled 
provisionally  by  the  Constitution,  the  Commonwealth 
Parliament  will  have  to  legislate. 

The  question  of  the  spot  where  the  capital  should  be 
placed  gave  rise,  as  had  happened  in  the  United  States 
and  in  Canada,  to  some  controversy.  It  was  adjusted 
by  providing  that  the  seat  of  Federal  government  should 
be  in  the  colony  of  New  South  Wales,  but  at  least  100 
miles  from  Sydney.  Here  an  area  is  to  be  set  apart 


THE  AUSTRALIAN  COMMONWEALTH  437 

of  not  less  than  100  square  miles,  which  shall  be  under 
the  jurisdiction  of  the  Commonwealth,  as  the  District 
of  Columbia  is  under  the  authority  of  the  National  Gov- 
ernment in  the  United  States  :  and  here  a  stately  city  will 
doubtless  in  time  spring  up. 

Power  is  taken  to  admit  new  States,  whether  formed 
out  of  existing  States  or  not,  upon  any  terms  and  condi- 
tions (e.g.  as  to  number  of  Senators)  which  the  Parlia- 
ment may  fix,  but  if  the  new  State  is  formed  out  of  an 
old  one,  only  with  the  latter's  consent.  The  Parliament 
has  also  full  power  to  accept  and  provide  for  the  ad- 
ministration of  any  territory  transferred  to  it  by  the 
Crown,  so  that  no  constitutional  questions  can  arise  re- 
sembling that  which  has  occupied  American  lawyers 
since  the  annexation  of  Puerto  Rico. 

XVII.  AMENDMENT  OF  THE  CONSTITUTION. 

Last  of  all  we  come  to  the  mode  of  amending  the  Con- 
stitution, a  mode  easier  to  apply  than  that  prescribed  for 
the  United  States,  but  showing  the  influence  to  some 
extent  of  the  American  though  more  largely  of  the  Swiss 
model  in  its  reference  to  the  popular  vote. 

Every  law  proposing  to  alter  the  Constitution  must 
be  passed  by  an  absolute  majority  of  each  House,  and 
thereupon  (after  two  but  before  six  months)  be  sub- 
mitted to  the  voters  of  every  State.  If  in  a  majority  of 
States  a  majority  of  the  electors  voting  approve  the  pro- 
posal, and  if  these  State  majorities  constitute  a  majority 
of  all  the  electors  voting  over  the  whole  Commonwealth, 
the  amendment  is  passed,  and  is  then  to  be  presented  to 
the  Crown  for  assent.  Should  the  two  Houses  differ, 
one  passing  the  proposed  law  and  the  other  rejecting 
it  (or  passing  it  with  an  amendment  which  the  first- 
mentioned  House  rejects),  the  House  which  approves 
the  proposal  may  again  pass  it,  and  if  the  dissenting 
House  again  dissents,  the  amendment  may  be  submitted 
to  the  people  as  if  both  Houses  had  passed  it.  The  de- 


438  THE  AUSTRALIAN  COMMONWEALTH 

cision  of  the  people  is  final.  To  meet  the  fact  that  the 
suffrage  is  not  in  all  the  States  confined  to  men,  it  is 
further  provided  that,  in  any  State  wherein  all  adults  are 
entitled  to  vote,  only  one  half  of  the  vote  shall  be 
counted1. 

Thus  the  requirements  for  the  passing  of  an  Amend- 
ment are: — 

1.  Absolute  majority  in  each  House  of  Parliament, 
or  else  absolute  majority  in  one  House  given  twice,  the 
second  time  after  three  months'  interval,  plus  submission 
on  both  occasions  to  the  other  House. 

2.  Approval  of  the  people  in  a  majority  of  States  (i.e. 
at  present  in  four  States  at  least). 

3.  Approval  of  a  majority  of  the  people  voting  over 
the  whole  Commonwealth. 

The  American  Federal  Constitution  requires  a  two- 
thirds'  majority  in  each  House  of  Congress  and  a  three- 
fourths'  majority  of  States,  or  else  the  proposal  of  a 
Convention  by  two-thirds  of  the  States  and  a  three- 
fourths'  majority  of  States  approving  what  the  Conven- 
tion has  settled,  conditions  extremely  difficult  to  se- 
cure. The  Swiss  system  permits  the  Constitution  to  be 
amended  by  the  same  process  as  is  applied  to  the  passing 
of  laws,  plus  a  popular  vote  which  results  in  a  majority 
of  Cantons  and  in  a  majority  of  the  people  voting  over 
the  whole  Confederation. 

XVIII.  RELATIONS  OF  THE  AUSTRALIAN  COMMONWEALTH 
TO  THE  CROWN. 

It  has  not  seemed  necessary  to  set  forth  the  relations 
of  the  Commonwealth  to  the  British  Crown,  because 
these  relations  are  substantially  those  which  have  here- 
tofore existed  between  the  Crown  and  each  of  the  self- 

1  But '  no  alteration  diminishing  the  proportionate  representation  of  any  State 
in  either  House  of  the  Parliament,  or  the  minimum  number  of  representatives  of  a 
State  in  the  House  of  Representatives,  or  increasing,  diminishing  or  otherwise 
altering  the  limits  of  the  State,  shall  become  law  unless  the  majority  of  the  electors 
voting  in  that  State  approve  the  proposed  law '  (sect.  128). 


THE  AUSTRALIAN  COMMONWEALTH  439 

governing  colonies  now  united  in  the  Federal  Common- 
wealth. The  chief  difference  is  that  the  Commonwealth 
Parliament  receives  certain  powers  (as  to  extra-terri- 
torial fisheries  and  relations  with  the  islands  of  the 
Pacific)  which  were  previously  exerciseable  only  by  the 
(now  extinct)  Federal  Council  of  Australasia  (mentioned 
above),  that  it  has  a  general  power  to  legislate  on  *  ex- 
ternal affairs  '  (a  somewhat  vague  term,  sect.  51,  xxix), 
and  that  it  may  '  exercise  within  the  Commonwealth,  at 
the  request  or  with  the  concurrence  of  the  Parliaments 
of  all  the  States  directly  concerned,  any  power  which 
can  now  be  exercised  only  by  the  Parliament  of  the 
United  Kingdom  or  by  the  Federal  Council  of  Austra- 
lasia '  (sect.  51,  xxxviii).  Apart  from  these  provisions, 
which  may  give  rise  to  some  delicate  questions,  the  prin- 
ciples and  practice  which  have  guided  the  action  of  the 
Home  Government  and  of  the  Colonial  Governors  will 
apparently  be  preserved.  Though  the  Imperial  Parlia- 
ment has  an  unquestioned  right  to  legislate  for  every 
part  of  the  British  dominions  so  as  to  override  all  local 
legislation,  it  does  not  now  exercise  this  power  except  for 
a  few  purposes  of  utility  common  to  all,  or  many,  British 
possessions,  such  as  for  the  regulation  of  merchant- 
shipping  or  copyright,  and  when  it  does  so,  it  secures  the 
assent  of  the  self-governing  Colonies.  So  again,  though 
the  Crown  has  the  legal  right  to  withhold  consent  from 
Colonial  Statutes,  this  right  is  rarely  exerted,  and  then 
only  in  respect  of  some  general  imperial  interest  which 
it  is  supposed  that  the  statute  in  question  may  preju- 
dicially affect,  i.e.  the  Crown's  right  is  not  exerted  in 
the  interest  of  any  class  of  persons  in  the  Colony  or  in 
pursuance  of  any  particular  view  entertained  either  by 
the  Governor  there  or  by  the  Ministry  at  home.  The  new 
Australian  Constitution  provides  (sectt.  58-60)  that 
when  a  measure  passed  by  the  Parliament  is  presented 
to  the  Governor-General,  he  may  either  assent  to  it  in 
the  Queen's  name  (but  subject  to  a  power  to  the  Queen 
to  disallow  the  same  within  one  year)  or  he  may  withhold 


440  THE  AUSTRALIAN  COMMONWEALTH 

assent;  or  he  may  reserve  it  for  the  Queen's  pleasure, 
in  which  last  case  it  shall  not  take  effect  unless  he  an- 
nounces within  two  years  that  the  Queen  has  assented 
to  it.  This  right  of  veto,  though  it  looks  on  paper  larger 
than  that  which  belongs  to  the  President  of  the  United 
States,  seeing  that  the  President's  veto  can  be  overridden 
by  a  two-thirds'  majority  in  each  House  of  Congress, 
is  in  reality  far  more  limited,  and  will  constitute  no  check 
(except  where  imperial  interests  may  be  affected)  upon 
the  practically  sovereign  power  of  the  Commonwealth 
Parliament. 

XIX.   COMPARISON  WITH  THE  CONSTITUTIONS     OF 
THE  UNITED  STATES  AND  CANADA. 

Before  I  make  some  general  reflections  on  the  cha- 
racter of  this  Australian  Constitution,  it  is  worth  while 
to  note  summarily  the  principal  points  in  which  it  differs 
from  the  two  other  Federal  Constitutions  which  it  most 
resembles. 

The  provisions  which  it  has  borrowed  from  the 
American  Constitution  have  been  already  adverted  to. 
It  differs  from  that  Constitution  in  the  following  (among 
other)  respects : — 

1.  It  is  a  longer  instrument,  going  into  much  fuller 
detail  on  many  topics. 

2.  It  leaves  less  power  to  the  States  and  gives  more 
power  to  the  Commonwealth;  and  it  enables  the  Com- 
monwealth Parliament  to  legislate  for  a  State  upon  the 
State's  request,  a  thing  which  lies  quite  outside  the  func- 
tions of  Congress. 

3.  It  does  not  establish  a  complete  system  of  Federal 
Courts  covering  the  whole  area  of  the  Commonwealth, 
but  allows  State  Courts  to  be  invested  with  Federal 
jurisdiction. 

4.  It  makes  the  Federal  High  Court  a  Court  of  ap- 
peal from  State  Courts,  whereas  in  the  United  States 
each  State  Supreme  Court  is  final  in  its  proper  sphere. 


THE  AUSTRALIAN  COMMONWEALTH  441 

5.  It  contains  hardly  any  restrictions,  in  the  nature  of 
a  '  Bill  of  Rights/  upon  the  power  of  the  Federal  Legisla- 
ture over  the  individual  citizen. 

6.  Instead  of  disjoining  Legislature  and  Executive, 
it  unites  thetn  closely  by  the  system  of  Responsible  or 
Cabinet  Government,  and  so  far  from  excluding  every 
official  from  Congress,  it  makes  a  seat  in  Parliament  a 
condition  of  Ministerial  office. 

7.  It  vests  the  choice  of  the  Head  of  the  Executive, 
not  in  the  people,  but  in  an  external  authority,  the 
British  Crown.    To  be  sure,  this  Head  is  nominal  and 
not  responsible  either  to  the  people  or  to  the  legis- 
lature. 

8.  It  vests  the  election  of  Senators  in  the  people,  not 
in  State  Legislatures,  gives  the  Senate  no  power  of 
amending  but  only  of  suggesting  amendments  in  money 
bills,  makes  the  Senate  dissoluble  in  case  of  a  deadlock 
between  it  and  the  House,  and  contemplates  the  possi- 
bility that  new  States  may  have  a  smaller  representa- 
tion in  the  Senate  than  original  States. 

9.  It  gives  to  the  Executive  no  such  veto  on  legis- 
lation as  the  President  has  in  the  United  States.    I  have 
already  explained  that  the  veto  of  the  Governor-General 
and  the  Crown  is  a  different  thing,  and  rarely  employed. 

10.  It  makes  the  amendment  of  the  Constitution  a 
much  less  tedious  and  difficult  process. 

Thus  it  may  be  said  that,  as  compared  with  the  Ameri- 
can Constitution,  it  vests  more  power  in  the  National 
Government  as  against  the  State  Governments,  and  that, 
as  between  the  various  departments  of  the  National 
Government  itself,  it  concentrates  power  more  fully  in 
the  hands  of  the  Legislature  and  imposes  fewer  restric- 
tions upon  its  action. 

The  Constitution  of  Canada  seems  at  first  sight  nearer 
to  that  of  Australia  than  does  the  American.  It  has  a 
Monarch,  represented  by  a  Governor-General,  for  the 
head  of  its  Executive.  It  contemplates  a  number  of 
States  small  when  compared  with  the  forty-five  of  the 


442  THE  AUSTRALIAN  COMMONWEALTH 

American  Union.    It  has  adopted  the  British  system  of 
Cabinet  or  responsible  Government. 

But  the  differences  are  really  so  considerable  as  to 
place  Australia's  scheme  as  far  from  that  of  her  colonial 
sister  as  from  the  American.  Among  them  are  the 
following : — 

1.  The  Canadian  Constitution  prescribes  the  Constitu- 
tions of  the  several  Provinces,  though  it  permits  the 
Provincial  legislatures  to  alter  them  (subject  to  a  Federal 
veto).    The  Australian  assumes  its  State  Constitutions 
as  existing,  and  makes  no  change  in  them,  except  so 
far   as   the   Federation   controls    or   supersedes    them. 
Hence   the   antecedent   power   of   changing   them   re- 
mains, so  far  as  they  are  not  affected  by  the  Federal 
Constitution. 

2.  Australia  leaves  to  the  States  all  residuary  powers 
(i.e.  powers  not  expressly  granted).     Canada  withholds 
them    from    the    Provinces    and    vests    them    in    the 
Dominion. 

3.  Australia  leaves  the  State  Governors  to  be  ap- 
pointed, as  now,  by  the  Home  Government,  apart  from 
Federal  interference.    Canada  gives  the  appointment  of 
them  to  the  Federal  Ministry.    And  whereas  in  Canada 
a  Provincial  Governor  cannot  communicate  directly  with 
home  but  only  with  the  Governor-General,  in  Australia 
the  State  Governor  and  his  Ministers  are  in  direct  touch 
with  the  British  Government  in  London. 

4.  Australia  gives  to  the  Federal  Government  no  right 
whatever  to  interfere  with  State  Statutes.     Canada  in- 
vests the  Dominion  Government  with  a  veto  on  Pro- 
vincial legislation  by  placing  the  Governor-General  as 
regards  such  legislation  in  the  place  which  the  Queen 
holds  as  regards  Dominion  legislation. 

5.  Australia  distinguishes  Federal  from  State  juris- 
diction, taking  power  to  establish  Federal  Courts  other 
than  her  High  Court,  and  to  invest  State  Courts  with 
Federal  jurisdiction.    Canada  has   no   special   Federal 
Courts  other  than  the  Supreme  Court  of  the  Dominion. 


THE  AUSTRALIAN  COMMONWEALTH  443 

6.  Australia  makes  her  Senate  an  elective  assembly. 
In  Canada  the  Senate  is  nominated  by  the  Dominion 
Government,  and  is  therefore  a  weak  body,  quite  unfit 
to  try  conclusions  with  the  House  which  has  the  people 
behind  it. 

7.  Australia  provides  a  method  whereby  the  Common- 
wealth may  amend  its  Constitution.    Canada  has  no  such 
method,  and  thereby  leaves  amendment  to  the  Imperial 
Parliament  of  the  United  Kingdom. 

This  comparison  shows  that  the  Australian  scheme 
of  Federal  Government  stands  intermediate  between 
that  of  the  United  States  and  that  of  Canada.  In  the 
United  States,  the  Federal  Government  has  less  power 
as  against  the  States  than  in  Australia.  In  Canada,  the 
Federal  Government  has  more  power,  or  at  least  a  wider 
range  of  action.  In  other  words,  the  Australian  sys- 
tem approaches  nearer,  in  point  of  form,  to  a  Unitary 
Government  than  does  the  United  States,  but  not  so 
near  as  does  Canada.  I  am  speaking  merely  of  form, 
that  is,  of  the  institutions  as  they  stand  on  paper,  for  it 
does  not  necessarily  follow  that  the  spirit  in  which  in- 
stitutions are  worked  will  precisely  correspond  to  their 
form.  The  old  Romano-Germanic  Empire,  for  instance 
(1638-1806),  was  less  unitary  in  practice  than  would  have 
been  collected  from  its  form;  the  new  German  Empire 
(since  1871)  is  more  unitary  in  spirit  and  working  than 
its  form  would  necessarily  convey. 

XX.  GENERAL  OBSERVATIONS  ON  THE  CONSTITUTION. 

Technically  regarded,  the  Constitution  is  an  excellent 
piece  of  work.  Its  arrangement  is  logical.  Its  language 
is  for  the  most  part  clear  and  precise.  The  occasional, 
and  perhaps  regrettable,  vagueness  of  some  expressions 
appears  due,  not  to  any  carelessness  of  the  draftsmen, 
but  to  the  nature  of  the  subject-matter.  The  cumbrous- 
ness  of  the  provisions  regarding  customs,  duties,  and 
the  control  of  railways  is  the  almost  inevitable  result  of 


444  THE  AUSTRALIAN  COMMONWEALTH 

an  effort  to  meet  the  claims  and  appease  the  apprehen- 
sions of  neighbouring  communities  with  interests  that 
have  been  deemed  opposed.  Although  it  is  much  longer, 
as  well  as  less  terse,  than  the  Constitution  of  the  United 
States,  going  into  fuller  detail,  and  with  more  of  the 
flavour  of  an  English  statute  about  it,  it  nevertheless, 
like  that  Constitution,  leaves  much  to  be  subsequently 
rilled  up  by  the  action  of  the  legislature.  A  very  large 
field  of  legislation  remains  common  to  the  States  and 
the  Commonwealth  Parliament;  and  though  statutes 
passed  by  the  latter  will  of  course  override  or  supersede 
those  which  may  have  been  passed  by  the  former,  it 
may  be  many  years  before  the  higher  Parliament  finds 
leisure  to  cultivate  all  the  ground  which  lies  open  before 
it.  A  further  range  of  activity  for  that  Parliament  may 
disclose  itself  if  the  State  legislatures  should  exert  the 
power  they  possess  of  asking  the  Commonwealth  to  take 
over  part  of  their  work.  And  apart  from  both  these 
lines  of  legislative  action,  the  Parliament  will  find  a  very 
large  number  of  matters  which  the  Constitution  has  ex- 
pressly directed  it  to  settle  by  statutes.  Till  such  statutes 
have  been  enacted,  many  points  material  to  the  working 
of  the  system  will  remain  undetermined. 

In  two  points  the  experience  of  the  United  States  has 
been,  consciously  or  unconsciously,  turned  to  account. 
The  complaint  has  often  been  made  in  America  that  the 
Constitution  contains  no  recognition  of  the  Supreme 
Being.  The  Australians  have  introduced  such  a  recog- 
nition in  the  preamble  of  the  Imperial  Act  establishing 
the  Constitution,  which  runs  as  follows :  '  Whereas  the 
people  of  New  South  Wales,  Victoria,  South  Australia, 
Queensland,  and  Tasmania,  humbly  relying  on  the  bless- 
ing of  Almighty  God,  have  agreed  to  unite  in  one  in- 
dissoluble Federal  Commonwealth  under  the  Crown  of 
the  United  Kingdom,'  &c.  And  they  have  also  solemnly 
enounced  in  the  same  preamble  that  indissolubility  of 
their  union  which  the  Americans  did  not  enounce  in 
1788,  and  the  absence  of  which  from  the  instrument  gave 


TEE  AUSTRALIAN  COMMONWEALTH  445 

rise  to  endless  argumentation  on  the  part  of  those 
who  maintained  the  right  of  a  State  to  retire  from  the 
Federation. 

The  perfection  of  any  Federal  system  may  be  tested 
by  the  degree  of  thoroughness  with  which  the  Federal 
principle  is  worked  out  in  its  application,  not  only  to 
the  legislative,  but  also  to  the  executive  and  judicial 
branches  of  government.  In  this  respect  the  Australian 
scheme  is  less  perfect  than  the  American;  for  the  Com- 
monwealth has  received  power  to  legislate,  no  doubt  at 
the  request  of  the  State,  on  purely  State  matters,  to 
return  to  the  States  part  of  the  revenue  it  collects,  and 
to  assume  the  pecuniary  liabilities  of  the  States.  There 
is  also,  as  already  noted,  no  such  effort  as  in  America 
to  secure  that  questions  of  State  law  shall  be  determined 
solely  by  State  Courts,  for  such  cases  may  be  appealed 
from  State  Courts  to  the  Federal  High  Court.  Thus 
the  Nation  looms  large  over  the  whole  instrument, 
overshadowing  the  States.  There  are  indeed  many  pro- 
visions for  safeguarding  the  interests  of  the  States,  yet 
these  are  not  so  much  recognitions  of  States'  rights  as 
stipulations  made  to  secure  material  advantages,  indus- 
trial or  commercial  or  financial.  An  explanatio'n  of  this 
remarkable  feature  of  the  scheme  may  be  found  in  the 
phenomena  of  Australian  as  compared  with  those  of 
American  history.  The  thirteen  States  which  united  in 
1788-9  had  each  of  them  a  long  history.  The  two  oldest 
dated  back  to  the  beginning  of  the  seventeenth  century. 
The  youngest  had  nearly  sixty  years  of  political  life 
behind  it.  All  were  animated  by  a  strong  sentiment 
of  local  independence,  and  by  a  passion  for  liberty  which 
had  become  associated  with  local  independence.  Their 
notions  of  a  Unitary  Government  were  formed  from 
England,  whose  monarch  they  had  latterly  learned  to 
hate  as  their  oppressor.  Hence  their  love  for  their 
States  was  largely  sentimental.  Their  minds  were  filled, 
not  by  the  mere  sense  of  what  they  gained  from  their 
States  as  business  men,  but  by  the  loyalty  they  bore  to 


446  THE  AUSTRALIAN  COMMONWEALTH 

their  States  as  protectors  of  their  civic  rights  and  em- 
bodiments of  their  historical  traditions. 

Very  different  were  the  feelings  of  the  Australians. 
The  oldest  colony  dated  back  scarcely  more  than  a  hun- 
dred years,  and  had  enjoyed  responsible  government  for 
less  than  fifty.  Proud  as  each  colony  was  of  its  progress, 
there  had  not  been  time  for  those  political  traditions  to 
be  formed  in  which  the  love  of  local  independence  roots 
itself.  Neither  were  there  between  the  several  colonies 
such  differences  of  origin  or  of  usages  and  ways  of  life 
as  separated  the  New  Englanders  from  the  men  of  Vir- 
ginia and  the  Carolinas,  for  the  Australians  had  emi- 
grated so  recently  from  Britain  that  no  local  types  had 
yet  been  formed.  Still  less  was  there  that  aversion  to  a 
Unitary  system  of  government  which  the  strife  with  Eng- 
land had  evoked  among  the  Americans.  The  only  politi- 
cal model  which  the  Australians  knew  at  first  hand  was 
the  government  of  Britain  by  its  Parliament,  a  govern- 
ment which  had  ceased  in  1832  to  be  oligarchic,  and  had 
since  1867  begun  to  be  democratic.  Accordingly,  among 
the  Australians,  State  feeling  had  a  thoroughly  practical 
and  business  character.  It  took  in  each  man  the  form  of 
a  resolve  to  secure  the  agricultural  and  trading  interests 
of  his  own  part  of  the  country.  It  was  in  fact  the  wish 
to  make  a  good  bargain  for  his  community  and  himself. 
Sentiment  there  was  and  is.  But  the  sentiment  gathered 
round  the  Commonwealth  of  the  future  rather  than  the 
Colony  of  the  past.  The  same  kind  of  feeling  which  at- 
tached the  sons  of  the  Cavaliers  to  Virginia  and  the  Puri- 
tans of  Massachusetts  to  the  old  '  Bay  State  '  made  the 
Australians  desire  to  found  a  great  nation  which  should 
be  the  mistress  of  the  Southern  seas.  Hence  the  absence 
of  any  jealousy  of  the  central  power  beyond  that  which 
is  suggested  by  the  fear  that  local  industrial  or  commer- 
cial interests  might  be  unfairly  dealt  with. 

This  attitude  of  Australian  feeling  will  therefore  (if 
the  view  here  presented  be  correct)  work  towards  the 
development  of  those  centralizing  tendencies  in  the  Con- 


THE  AUSTRALIAN  COMMONWEALTH  447 

stitution  for  which  its  terms  give  ample  scope.  In  all 
forms  of  polity  the  influences  which  draw  the  members 
of  a  composite  political  community  together  and  those 
which  thrust  them  asunder  are  partly  material,  partly 
sentimental1.  How  the  influences  of  material  interest 
will  work  in  Australia  I  will  not  attempt  to  predict. 
Some  of  them  may  prove  centrifugal;  others,  such  as 
those  of  trade,  are  clearly  centripetal.  The  Constitu- 
tion frankly  recognizes  that  economic  conditions  pre- 
scribe a  federal  rather  than  a  unitary  government.  But 
it  is  a  significant  fact  that  the  influences  of  sentiment 
were  arrayed  on  the  side  of  the  Nation  rather  than  on 
that  of  the  States.  One  can  read  this  between  the  lines 
of  the  Constitution ;  and  it  explains  why  the  Frame  of 
Government  is  less  consistently  Federal  than  is  that  of 
the  United  States. 

XXI.  MODERN  AND  DEMOCRATIC  CHARACTER  OF 
THE  AUSTRALIAN  CONSTITUTION. 

The  Australian  instrument  is  the  true  child  of  its  era, 
the  latest  birth  of  Time.  Compared  with  it,  the  Ameri- 
can Constitution  seems  old-fashioned,  and  parts  of  the 
Swiss  Constitution  positively  archaic.  Cabinet  Govern- 
ment, whose  fully  developed  form  is  scarcely  a  century 
old,  is  taken  for  its  basis.  Ideas  and  enterprises,  pro- 
blems and  proposals,  so  new  that  they  are  only  just  be- 
ginning to  be  seriously  discussed,  figure  in  it.  As  sla- 
very, an  institution  almost  coeval  with  the  human  race, 
but  essentially  barbarous,  survived  to  be  mentioned 
(under  a  transparent  euphemism)  in  the  Constitution 
of  the  United  States,  so  a  new  industrial  question — viz. 
the  struggle  between  white  labour  and  free  coloured 
labour — makes  its  appearance  in  this  Australian  docu- 
ment. Here  too  are  the  new  products  and  new  methods 
of  science,  telegraphs  and  telephones  and  the  keeping  of 
meteorological  observations;  here  is  the  extension  of 

»  See  Essay  IV. 


448  THE  AUSTRALIAN  COMMONWEALTH 

the  suffrage  to  women ;  here  are  the  new  troubles  which 
spring  from  contests  between  employers  and  workmen ; 
here  the  new  proposals  for  throwing  on  the  State  the 
function  of  providing  for  its  members  in  sickness  and 
old  age;  here  an  express  recognition  of  the  right  of  a 
State  to  control  the  traffic  in  intoxicating  liquors.  And 
above  all  these  one  perceives  through  the  whole  instru- 
ment that  dominant  factor  of  our  age,  the  ever-present 
and  all-pervading  influence  of  economic  forces,  of  in- 
dustrial production,  of  commerce,  of  finance.  The  in- 
creased and  increasing  importance  of  these  influences 
in  the  life  of  the  modern  world,  stimulated  as  they  have 
been  by  the  amazing  progress  of  scientific  discovery, 
finds  a  fuller  expression  in  this  Constitution  than  in  any 
other  yet  framed. 

As  in  these  points  this  Constitution  is  at  least  abreast 
of  European  and  American  theory,  and  ahead  of  Euro- 
pean or  American  practice,  so  also  it  represents  the 
high-water  mark  of  popular  government.  It  is  pene- 
trated by  the  spirit  of  democracy.  The  actual  every- 
day working  of  government  in  the  Australian  Colonies 
is  more  democratic  than  in  Britain,  because  Britain  has 
retained  certain  oligarchical  habits,  political  as  well  as 
social.  It  is  more  democratic  than  in  the  United  States, 
because  there  both  the  States  and  the  Union  are  fettered 
by  many  constitutional  restrictions,  and  because  wealth 
has  there  (as  indeed  in  Britain  also)  been  able  to  exert 
a  control  none  the  less  potent  because  half-concealed. 
But  the  Constitution  of  this  Federal  Commonwealth  is 
more  democratic  than  are  the  Constitutions  of  the  seve- 
ral Australian  colonies,  in 'some  of  which  property  quali- 
fications and  nominated  second  chambers  have  survived 
till  now.  It  prescribes  no  qualification  for  a  Senator  or 
Representative  beyond  his  having  attained  the  age  of 
twenty-one  and  being  himself  qualified  to  become  an 
elector.  He  need  not  even  be  a  resident  in  the  State 
where  he  seeks  election.  The  Senate  as  well  as  the 
House  is  elective ;  both  are  chosen  directly  by  the  peo- 


THE  AUSTRALIAN  COMMONWEALTH  449 

pie,  and  on  the  basis  of  the  suffrage  which  each  State 
prescribes  for  the  election  of  its  more  popular  House. 
The  duration  of  the  House  is  only  three  years.  The 
direct  popular  vote,  an  institution  specially  characteris- 
tic of  advanced  democracy,  which  has  been  developed 
independently  in  the  United  States  and  in  Switzerland 
(where  it  has  taken  the  double  form  of  a  Referendum  to 
the  people  and  an  Initiative  proceeding  from  the  peo- 
ple), is  here  applied  to  the  enactment  of  amendments  to 
the  Constitution,  and,  in  the  form  of  a  general  election 
of  both  Houses  simultaneously,  to  the  settlement  of 
deadlocks  between  the  Houses.  There  is  no  veto  on  the 
acts  of  the  Legislature,  for  that  vested  in  the  Governor- 
General  and  in  the  Crown  is  not  intended  to  be  used  ex- 
cept in  the  rare  cases  where  imperial  interests  may  be 
touched.  In  fact  all  those  checks  and  balances  in  the 
English  and  American  Constitutions  by  which  the  cen- 
sors of  democracy  used  to  set  such  store,  have  here 
dwindled  down  to  one  only,  viz.  the  existence  of  two 
Chambers.  These  two  will  be  elected  on  the  same  fran- 
chise and  composed  of  similar  men,  but  the  tendency 
to  dissension  so  natural  to  rival  bodies  may  sometimes 
interpose  delays  and  ought  certainly  to  make  the  criti- 
cism of  proposals  more  searching.  If  the  principle  of 
popular  sovereignty  is  expressed  with  equal  clearness 
in  the  Constitutions  of  America  and  Switzerland,  it  as- 
sumes in  this  Australian  Constitution  a  more  direct  and 
effective  form,  because  many  of  the  restrictions  which  the 
two  former  constitutions  (and  especially  that  of  Amer- 
ica) impose  on  the  legislature  in  the  supposed  interests 
of  the  people  are  absent  from  the  Australian  instrument. 
In  Australia  the  people,  through  their  legislature  with 
its  short  term,  are  not  only  supreme,  but  can,  by  the 
legislature's  control  of  the  Executive,  give  effect  to  their 
wishes  with  incomparable  promptitude.  For  this  pur- 
pose, the  expression  '  people '  practically  means  the 
leader  who  for  the  time  being  commands  the  popular 
majority.  Holding  in  his  hand  both  the  Executive 


450  THE  AUSTRALIAN  COMMONWEALTH 

power  of  the  Cabinet  and  the  legislative  power  of  Parlia- 
ment, he  has  opportunities  of  effecting  more  than  any 
one  man  can  effect  under  the  constitutions  either  of 
America  or  of  Switzerland. 

The  solitary  restraint  which  Australia  provides  is  the 
co-ordinate  authority  of  the  Senate,  a  hostile  majority 
in  which  may  check  or  at  least  delay  his  legislative  pro- 
jects. Yet  if  his  party  in  the  country  be  well  organized 
and  his  programme  alluring  to  the  masses  he  may  con- 
trol the  Senate  as  well  as  the  House,  for  it  does  not  fol- 
low that  because  the  smaller  States  have  prudently 
placed  their  interests  under  the  protection  of  the  Senate, 
they  will  on  the  great  issues  of  politics  be  usually  found 
opposed  to  their  larger  neighbours1. 

This  highly  democratic  character  of  their  Constitu- 
tion has  been  fully  appreciated  by  Australian  statesmen. 
The  effusiveness  with  which  they  dwell  upon  it  is  pro- 
bably more  sincere  than  even  that  which  is  displayed  by 
politicians  in  England,  America,  or  France,  when  they 
chant  the  praises  of  the  multitude.  Australians  are  as 
sanguine  in  their  temper  now  as  Americans  were  in  the 
days  before  the  clouds  of  Slavery  and  Secession  had 
begun  to  darken  their  sky. 

XXII.  POLITICAL  PARTY  IN  AUSTRALIA. 

Although  the  Constitution  says  no  word  about  politi- 
cal parties,  the  fact  that  it  contemplates  a  party  system  is 
written  over  it  in  bold  characters.  The  sages  of  the 
Philadelphia  Convention  of  1787  neither  intended  nor 
expected  that  the  scheme  they  devised  would  fall  into 
the  hands  of  parties.  Indeed  they  had  a  touching  faith, 
dispelled  as  soon  as  Washington  retired  from  the  scene, 
that  the  electors  who  were  to  be  chosen  to  elect  the 
President  would  select  the  best  man  in  the  nation  irre- 

1  In  the  first  election  of  members  of  the  two  Houses,  which  took  place  while 
these  pages  were  passing  through  the  press,  every  State  was  divided  upon  the  issue 
of  Free  Trade  versus  Protection,  though  the  Protectionist  (or  high-tariff)  party 
secured  more  seats,  in  proportion,  in  the  House  than  it  did  in  the  Senate. 


THE  AUSTRALIAN  COMMONWEALTH  451 

spective  of  his  political  ties.  The  Swiss,  strange  as  it 
may  seem  to  men  of  English  or  Anglo-American  race, 
have  succeeded  in  keeping  their  Executive,  elected 
though  it  is  by  the  Chambers,  out  of  party  politics  alto- 
gether, nor  do  parties  dominate  the  legislature  and  co- 
lour the  public  life  of  the  nation  as  in  America  and  Eng- 
land. But  Government  of  the  English  '  Cabinet  type  ' 
is  essentially  party  Government,  that  is  to  say,  it  has 
been  so  hitherto  both  in  England  and  wherever  else  it 
has  been  tried,  and  no  one  has  yet  shown  how  it  can  be 
made  to  work  otherwise. 

In  America  the  great  parties  are  younger  than  the 
Constitution,  which  may  be  said  to  have  created  them. 
In  England  they  are  older  than  Cabinet  Government 
proper,  being  practically  contemporaneous  in  their  rise 
with  that  very  rudimentary  form  of  the  Cabinet  which 
began  to  emerge  in  the  time  of  King  Charles  II.  In 
Australia  every  colony  has  had  such  active  and  skilfully- 
organized  parties  that  no  one  doubts  but  what  the  Fede- 
ral Legislature  will  find  its  first  Ministry  forthwith  pro- 
vided with  a  competent  Opposition.  It  is  generally 
believed  that  the  tariff  will  furnish  the  first,  and  for  some 
time  the  main,  ground  of  party  division,  for  the  new 
Government  must  begin  by  providing  itself  with  an  ade- 
quate revenue ;  the  chief  part  of  that  revenue  must  be 
raised  by  indirect  taxation,  and  the  issue  of  Free  Trade 
versus  Protection  has  for  years  past  been  a  burning  one 
in  the  largest  Colonies. 

I  have  observed  that  the  Australian  scheme  contem- 
plates a  party  system  to  work  it.  But  what  sort  of  a 
party  system?  Obviously  one  in  which  there  are  two 
parties  only,  each  cohesive,  each  prepared  to  replace  its 
antagonist  in  the  Executive.  Such  was  the  party  system 
of  England  till  the  present  generation.  Such  has  been 
the  party  system  of  the  United  States.  Exceptions  in- 
deed there  have  been,  such  as  the  Know-Nothing  party 
in  1852,  the  Greenback  party  in  1876,  the  Populist  party 
which  arose  in  1889,  and  is  not  quite  extinct  now  (Febru- 


452  THE  AUSTRALIAN  COMMONWEALTH 

ary  1901).  In  the  United  States  the  power  of  the  two 
great  organizations  is  so  vast,  and  the  cost  of  creating 
a  new  party  so  deterrent,  that  a  third  organization  sel- 
dom appears,  and  if  it  appears,  presently  disappears. 
But  in  France  there  have  been  and  are  several  parlia- 
mentary groups,  which  frequently  change  their  attitude 
towards  one  another,  sometimes  combining  to  support 
a  Ministry,  sometimes  falling  asunder  and  leaving  it  to 
perish,  because  one  group  alone  was  not  sufficient  to 
sustain  it.  Hence  the  lives  of  Cabinets  have  been  short, 
and  would  have  been  still  shorter  but  for  the  fact  that 
an  imminent  peril  to  republican  government  itself  has 
sometimes  compelled  the  various  republican  groups  to 
hold  together.  In  Britain  the  same  difficulty  became 
acute  from  1880  onwards,  as  the  Irish  Nationalists  con- 
solidated themselves  in  a  distinct  Third  Party;  and  it 
may  at  any  moment  create  serious  embarrassment.  It 
exists  in  Germany  also,  and  in  the  Reichsrath  of  the 
Austrian  half  of  the  Austro-Hungarian  Monarchy. 
Now  in  several  of  the  Australian  Colonial  Parliaments 
a  Labour  party  has  recently  arisen,  which,  keeping  itself 
independent  of  the  two  older  parties,  can  throw  its 
weight  on  one  or  the  other  side  and  endanger  the  sta- 
bility of  Cabinets.  Should  this  phenomenon  reappear 
in  the  Parliament  of  the  Commonwealth,  it  will  com- 
plicate still  further  a  position  which  the  co-ordinate 
powers  of  Senate  and  House  make  complicated  enough 
already 1 . 

XXIII.  POLITICAL  ISSUES  LIKELY  TO  ARISE 
IN  AUSTRALIA. 

The  mention  of  parties  suggests  another  question,  the 
last  I  shall  attempt  to  discuss,  viz.  the  lines  on  which 
the  political  life  of  Australia  is  likely  to  move  under  her 
new  Constitution.  It  is  a  topic  on  which  little  will  be 

1  Since  these  lines  were  written,  the  phenomenon  has  reappeared,  for  at  the  first 
elections,  held  in  the  spring  of  1901,  of  the  Senate  and  House,  the  Labour  party 
obtained  more  than  one-fifth  of  the  seats  in  each  House. 


THE  AUSTRALIAN  COMMONWEALTH  453 

said  by  any  one  who  remembers  how  seldom  great  con- 
stitutional changes  have  been  followed  by  the  results 
prophesied  at  the  time.  The  Reform  Bill  of  1832  in 
Britain,  the  Civil  War  in  the  United  States,  the  union  of 
Italy  under  the  dynasty  of  Savoy,  not  to  speak  of  the 
French  Revolutions  of  1789  and  1848,  all  brought  forth 
fruits  very  different  from  those  predicted  by  some  of 
the  most  judicious  and  unbiassed  contemporary  ob- 
servers. Even  the  extension  of  the  suffrage  and  redis- 
tribution of  seats  effected  in  Britain  in  1884-5  were  fol- 
lowed by  a  shifting  of  the  balance  of  party  strength 
exactly  the  opposite  of  that  which  the  shrewdest  party 
politicians  had  expected.  But  without  attempting  fore- 
casts, one  may  try  to  indicate  certain  conditions  likely 
to  affect  the  development  of  Australian  national  and  po- 
litical life  under  the  new  form  which  this  Constitution 
gives  it. 

First  let  us  ask  what  are  the  controversies  likely  to 
occupy  the  nation  and  to  supply  a  basis  for  national 
parties  ? 

Taking  one  country  with  another,  it  will  be  found  that 
the  questions  on  which  men  have  grouped  themselves 
into  parties  may  be  classed  under  five  heads,  viz. : — 

1.  Questions  of  Race,  such  as  those  which  have  con- 
tributed to  distract  Ireland,  which  to-day  trouble  the 
Austrian  Monarchy  and  (as  respects  the  Poles)  the  Prus- 
sian Monarchy,  which  exist,  though  at  present  not  acute, 
in  Canada,  and  which  are  painfully  acute  in  South  Africa. 

2.  Questions  of  religion,  now  generally  less  formida- 
ble than  they  once  were,  yet  embittering  disputes  re- 
garding education  in  many  modern  countries. 

3.  Questions  relating  to  foreign  policy,  whether  as  to 
the  general  lines  on  which  it  should  be  conducted,  or  as 
to  the  attitude  to  be  held  towards  particular  States  at 
any  given  moment. 

4.  Questions  regarding  the  distribution  of  political 
power  within  the  nation  itself. 

5.  Questions    of   an    economic    or    economico-social 


454  THE  AUSTRALIAN  COMMONWEALTH 

kind,  e.g.  regarding  the  disposal  of  land  in  public  hands 
or  its  tenure  in  private  hands,  regarding  the  conditions 
of  labour,  regarding  taxation  and  finance,  the  policy  of 
Protection  or  Free  Trade,  the  policy  of  progressive  im- 
posts, the  propriety  of  assisting  particular  industries  or 
particular  classes  out  of  public  funds,  whether  national 
or  local.  Some  of  these  may  seem  to  be  rather  social 
than  economic,  but  it  will  be  found  upon  scrutiny  that 
it  is  their  economic  aspect,  i.e.  their  tendency  to  take 
money  from  or  give  money  to  some  class  in  the  com- 
munity, that  makes  them  bases  for  party  combination. 
A  purely  social  question  seldom  assumes  great  political 
significance. 

(i,  2)  Applying  this  classification  to  Australia  we  shall 
find  that  the  first  two  sets  of  questions  are  absent.  All 
the  people  are  of  practically  the  same  race.  None  are 
animated  by  any  religious  passion,  although  contro- 
versies have  sometimes  arisen  over  theological  teaching 
in  State  schools. 

(3)  Questions  of  foreign  policy  do  not,  strictly  speak- 
ing, come  within  the  scope  of  the  Commonwealth  Parlia- 
ment,  because    they   belong   to    the    mother    country. 
Nevertheless,  it  cannot  be  doubted  that  the  Parliament 
will  from  time  to  time  interest  itself  in  them,  especially 
as  regards  the  isles  of  the  Pacific  and  of  the  Eastern 
Archipelago,  and  will  give  forcible  expression  to  its 
views  should  any  crisis  arrive.     One  can  well  imagine 
that  the  question  of  the  attitude  which  the  Common- 
wealth should  assume,  or  urge  the  mother  country  to 
assume,  towards  Germany  or  France,  or  Holland,  or 
even  towards  China  or  Japan  or  the  United  States,  when 
any  of  these  Powers  may  be  taking  action  in  the  West- 
ern Pacific,  might  give  rise  to  political  contention. 

(4)  As  respects  the  distribution  of  political  power  and 
the  structure  of  the  Federal  Government,  Australia  is 
so  democratic  already  that  it  cannot  go  much  further. 
It  will  doubtless,  however,  be  proposed  to  extend  to 
women  in  all  the  States  that  right  of  voting  at  Common- 


THE  AUSTRALIAN  COMMONWEALTH  455 

wealth  elections  which  they  already  enjoy  in  South  Au- 
stralia and  Western  Australia,  under  the  local  law,  or 
to  apply  more  widely  the  institution  of  the  direct  popular 
vote ;  or  to  amend  the  Constitution  in  some  point  which 
will  raise  an  issue  between  the  more  radical  and  the  more 
conservative  sections  of  opinion.  That  questions  of  con- 
stitutional amendment  have  played  so  small  a  part  in 
American  politics  may  be  attributed  to  the  extreme  dif- 
ficulty of  securing  the  majorities  required  for  altering 
the  Constitution.  In  Australia  the  process  will  be  far 
easier.  The  history  of  the  United  States  during  the  first 
seventy  years  of  the  Constitution  suggests  that  the  ques- 
tion of  the  respective  rights  of  the  Federation  and  of 
the  States  may  furnish  a  prominent  and  persistent  issue. 
This  is  quite  possible,  for  in  Federations  there  is  a  ten- 
dency for  many  controversies  of  various  kinds  to  con- 
nect themselves  with,  or  to  raise  afresh,  controversies 
regarding  the  true  construction  of  the  Federal  instru- 
ment as  respects  the  powers  which  it  assigns  to  the 
Nation  and  to  the  component  communities. 

(5)  It  is  however  questions  of  the  economic  order  that 
are  likely  to  occupy,  more  than  any  others,  the  minds 
and  energies  of  Australian  statesmen.  The  tariff  is  a 
practically  inexhaustible  topic,  because  apart  from  the 
general  issue  between  a  Protective  and  Free  Trade 
policy,  the  particular  imports  to  be  taxed  and  the  par- 
ticular duties  to  be  imposed  will  furnish  matter  for  de- 
bates that  can  hardly  have  finality,  seeing  that  cir- 
cumstances change,  and  that  the  financial  needs  of  the 
Government  will  increase.  It  need  hardly  be  said  that 
in  a  new  country  like  Australia  direct  taxation  is  difficult 
to  collect  and  highly  unpopular,  so  that  larger  recourse 
will  be  had  to  customs  and  excise  than  orthodox  econo- 
mists could  justify  in  Europe.  The  financial  relations 
between  the  Commonwealth  and  the  States  will  be  an- 
other fertile  source  of  controversy.  So  may  the  regula- 
tion of  the  railways,  which  the  Commonwealth  seems 
likely  to  take  over.  So  will  the  arrangements  for  secur- 


456  THE  AUSTRALIAN  COMMONWEALTH 

ing  the  respective  rights  of  different  States  as  regards 
both  irrigation  and  the  navigation  of  the  rivers,  practi- 
cally the  only  rivers  of  the  Continent,  which  intersect  the 
three  south-eastern  colonies.  Among  the  labour  ques- 
tions likely  to  arise,  one  problem,  much  before  the  minds 
of  Australians,  may  be  found  to  cause  difficulties  in  its 
details  if  not  in  its  general  principle ;  viz.  the  exclusion 
of  immigrants  of  coloured  race,  Chinese,  Japanese,  Ma- 
lays, and  Indian  coolies.  The  white  labourers  of  the 
temperate  colonies  have  been  strongly  opposed  to  the 
admission  of  such  strangers,  but  the  planters  of  the 
tropical  north,  who  have  used  the  labour  of  Pacific 
islanders  on  their  sugar  estates,  take  a  different  view  of 
the  case. 

Some  may  think  that  the  obvious  line  of  party  division 
will  be  found  to  be  that  which  ranges  the  four  smaller 
and  the  two  larger  States  into  opposite  camps.  If  this 
should  happen,  which  may  well  be  doubted,  it  will  be 
owing  to  a  coincidence  of  economic  interests,  and  not 
to  the  mere  fact  that  the  strength  of  one  set  of  States 
lies  in  the  House,  that  of  the  other  in  the  Senate.  The 
two  largest  States,  New  South  Wales  and  Victoria,  have 
hitherto  been  conspicuously  divergent  in  their  financial 
policy.  In  America,  though  the  small  States  fought  hard 
against  the  large  ones  in  the  Convention  of  1787,  the 
distinction  has  never  since  that  date  possessed  any  per- 
manent political  significance. 

If  parties  form  themselves  on  any  geographical  lines, 
the  line  will  more  probably  be  one  between  the  tropical 
and  the  temperate  regions.  These  tropical  regions  are 
at  present  much  less  populous  and  wealthy  than  is  the 
temperate  south-east  corner  of  the  Continent.  They  will 
doubtless  increase  both  in  wealth  and  in  population,  but 
as  the  strong  sun  forbids  out-door  labour  to  white  men, 
the  population  enjoying  political  rights  cannot,  for  gene- 
rations to  come,  be  a  large  one. 


THE  AUSTRALIAN  COMMONWEALTH  467 

XXIV.  POSSIBLE  ENTRANCE  OF  NEW  STATES. 

The  existing  situation  may  be  so  materially  affected 
by  the  entrance  of  new  States  that  one  naturally  asks 
what  are  the  prospects  that  new  States  will  be  admitted. 
As  the  whole  Continent  is  already  divided  among  the 
five  existing  States,  new  ones  can  come  into  being  only 
by  carving  up  the  three  larger  of  these.  There  has  al- 
ready been  talk  of  dividing  Queensland  into  two  or  per- 
haps three  States.  Others  might  be  formed  out  of  the 
now  sparsely  peopled  regions  of  the  north  and  north- 
west, when  they  have  become  more  thickly  inhabited. 
How  fast  the  process  of  colonization  will  advance  in 
these  regions  will  depend  upon  what  engineering  science 
may  be  found  able  to  do  for  the  more  arid  tracts  in  the 
way  of  storing  rain-water  and  raising  it  from  deep  wells, 
while  something  will  depend  on  the  disposition  of  the 
Federal  Government  to  spend  money  for  that  purpose. 
Nor  is  another  element  to  be  overlooked.  Vast  as  is 
the  mineral  wealth  already  known  to  exist  in  the  ex- 
plored parts  of  Australia,  it  may  be  equalled  by  that 
which  exists  in  regions  which  have  received  no  thorough 
geological  examination.  Should  mines  begin  to  be 
worked  in  the  arid  tracts,  an  additional  motive  would 
be  given  for  the  provision  of  water  supplies  there,  for 
the  existence  of  a  population  furnishing  markets  would 
stimulate  men  to  develop  the  capacities  of  the  soil  for 
ranching  and  even  for  tillage.  These  possibilities  show 
how  many  factors  hitherto  undetermined  may  go  to 
moulding  the  political  future  of  the  country.  The  in- 
crease of  population  in  regions  now  thinly  peopled  would 
either  make  the  four  smaller  States,  or  some  of  them, 
the  equals  of  the  larger,  or  would,  more  probably,  lead 
to  the  creation  of  new  States,  some  of  them  with  a  cha- 
racter different  from  that  of  the  two  which  now  com- 
mand a  decisive  majority  in  the  House  of  Representa- 
tives. As  the  settlement  of  the  Mississippi  Valley 
changed  American  politics,  so  a  filling  up  of  large  parts 


458  THE  AUSTRALIAN  COMMONWEALTH 

of  the  interior  and  north  of  Australia,  unlikely  as  this 
now  appears,  might  affect  her  constitutional  growth  in 
ways  at  which  we  can  now  only  guess. 

At  present  not  only  these  tropical  regions,  but  also  the 
settled  parts  of  Western  Australia  are  separated  by  vast 
uninhabited  spaces  from  the  populous  south-east  corner 
of  the  continent.  Hence  just  as  in  Canada  an  Interco- 
lonial Railway  to  connect  Nova  Scotia  and  New  Bruns- 
wick with  Quebec  and  Ontario  was  provided  for  in  the 
Constitution  of  1867,  and  just  as  the  construction  of  the 
great  transcontinental  Canadian  Pacific  line  enabled 
Manitoba  and  British  Columbia  to  become  effective 
members  of  the  Federation,  so  a  line  of  railway  from 
east  to  west  across  Australia,  as  well  as  the  completion 
of  the  line,  already  partly  constructed,  from  the  south 
to  the  north,  are  among  the  political  needs  of  the  Com- 
monwealth, and  might  do  much  to  weld  its  people  into 
an  even  more  united  nation. 

One  community  remains  to  be  mentioned  whose  geo- 
graphical position  towards  Australia  recalls  the  saying 
of  Grattan  that  while  the  Ocean  forbade  Ireland  to  be 
politically  severed  from  Britain,  the  Sea  forbade  an  in- 
corporating union.  It  has  been  hoped  that  New  Zea- 
land would  enter  the  Federation,  and  she  has  herself 
seriously  considered  whether  she  ought  to  do  so.  With 
a  healthy  climate,  a  soil  generally  well  watered,  and  an 
area  not  much  less  than  that  of  the  British  Isles,  New 
Zealand  has  evidently  a  great  future  before  her.  The 
population,  now  between  700,000  and  800,000,  has  tripled 
within  the  last  thirty  years;  and  the  level  of  personal 
comfort  and  well-being  is  as  high  as  anywhere  in  the 
world.  Her  accession  would  give  further  strength  to 
the  Federal  Commonwealth.  But  New  Zealand,  as  one 
of  her  statesmen  observed,  has  twelve  hundred  reasons 
against  union  with  Australia,  for  she  is  separated  from 
the  nearest  part  of  Australia  by  twelve  hundred  miles  of 
stormy  sea,  a  distance  more  than  half  of  that  which 
divides  Ireland  from  Newfoundland.  She  may  therefore 


THE  AUSTRALIAN  COMMONWEALTH  459 

think  that  some  sort  of  permanent  league  with  Austra- 
lia, for  the  purposes  of  combined  naval  defence  and  joint 
action  in  external  questions  of  common  concern,  would 
conform  better  to  her  outlying  position  than  would  par- 
ticipation in  a  Legislature  which  must  be  mainly  occu- 
pied with  the  affairs  of  Australia.  Of  the  subjects 
assigned  by  the  Constitution  to  the  Commonwealth  Par- 
liament, there  are  several  in  which,  because  purely  Au- 
stralian, New  Zealand  would  have  no  interest,  some  also 
with  regard  to  which  she  could  legislate  better  for  her- 
self than  the  Commonwealth  could  legislate  for  her,  in- 
asmuch as  her  economic  and  social  conditions  are  not 
the  same  as  those  of  Australia.  An  illustration  is  fur- 
nished by  the  difference  between  the  native  races  in  the 
two  countries.  The  Australian  aborigines,  one  of  the 
most  backward  branches  of  the  human  family,  are  ob- 
viously unfit  for  the  exercise  of  any  political  functions. 
They  are  not  permitted  to  vote  in  any  colony,  and  the 
Constitution  provides  that  in  determining  the  number 
of  representatives  to  be  allotted  to  a  State  they  shall 
not  be  reckoned  among  its  population.  But  the  Maoris 
of  New  Zealand  are  an  intelligent  folk,  to  whom  New 
Zealand  has  given  the  suffrage,  and  who  are  now  on 
excellent  terms  with  their  white  neighbours.  It  would 
no  doubt  be  possible  for  the  Commonwealth  Parliament 
to  legislate  differently  for  them  and  for  the  *  black  fel- 
lows '  of  Australia ;  but  their  dissimilar  character  shows 
the  difference  of  the  problems  which  arise  in  the  fwp 
countries.  New  Zealand  has  however  an  interest  in  ob- 
taining free  access  to  the  Australian  markets,  and  her 
final  decision  as  to  entering  the  Federation  may  be  in- 
fluenced by  the  commercial  policy  which  the  larger  coun- 
try pursues  l. 

In  this  changeful  world,  no  form  of  government  ever 
remains  the  same  during  a  long  series  of  years,  and  no 
Federation,  however  strictly  the  rights  of  its  members 

1  While  these  pages  were  passing  through  the  press,  a  Commission  appointed  in 
New  Zealand  to  consider  the  question  has  reported  strongly  against  her  entrance 
into  the  Australian  Federation. 


460  THE  AUSTRALIAN  COMMONWEALTH 

may  be  secured  by  a  Rigid  Constitution,  can  continue  to 
maintain  exactly  the  same  balance  of  powers  between 
the  Nation  and  the  States.  I  have  already  expressed  the 
opinion  that  the  tendency  is  in  Australia  likely  to  be 
rather  towards  consolidation  than  towards  a  relaxation 
of  the  Federal  bond,  because  not  only  national  senti- 
ment but  economic  influences  also  will  work  in  that  di- 
rection. Much  however  may  depend  on  a  factor  still 
unpredictable,  the  relations  between  Australia,  together 
with  the  British  Empire  generally,  and  the  other  Powers 
which  are  interested  in  the  Western  Pacific.  Nothing 
does  so  much  to  draw  together  a  people  already  homo- 
geneous as  the  emergence  of  issues  which  threaten,  or 
result  in,  a  struggle  against  foreign  States.  The  senti- 
ment of  internal  unity  is  accentuated.  Public  attention 
is  diverted  from  domestic  controversies.  Powers  are 
willingly  yielded  to  the  Executive  which  would  in  days 
of  peace  be  refused.  The  consequences  may  be  good 
or  evil — they  have  sometimes  been  in. the  long  run  evil 
— but  either  way  they  alter  the  character  of  the  govern- 
ment. They  may  even  give  a  new  direction  to  its  policy, 
as  the  United  States  has  recently,  and  quite  unexpect- 
edly, discovered. 

XXV.  FUTURE  RELATIONS  OF  THE  AUSTRALIAN 
COMMONWEALTH  TO  BRITAIN. 

Australia  however  is  not  a  State  standing  alone  in 
the  world,  but  a  member  of  the  British  Empire,  so  we 
cannot  close  an  examination  of  her  Constitution  without 
asking  whether  the  union  of  her  Colonies  will  affect  her 
relations  to  the  mother  country. 

When  the  first  Convention  to  frame  a  Federal  Con- 
stitution assembled  in  1891,  most  Englishmen  supposed 
that  a  Federated  Australia  would  soon  aspire  to  com- 
plete independence.  Australian  statesmen  saw  deeper, 
and  predicted  that  the  formation  from  the  several  Co- 
lonies of  an  Australian  Nation  would  tend  not  to  loosen, 


THE  AUSTRALIAN  COMMONWEALTH  461 

but  rather  to  draw  closer  the  ties  that  unite  the  people 
to  Great  Britain.  So  far  as  can  be  judged  from  the 
course  of  Australian  opinion  during  the  past  ten  years, 
this  has  been  the  result.  There  were  at  first  some  who 
advocated  Federation  as  a  means  to  independence.  But 
they  soon  desisted,  overborne  by  a  different  current. 
The  same  National  feeling  through  which  Federalism 
triumphed  seems  to  have  deepened  the  sense  of  unity 
with  other  members  of  the  British  race.  And  possibly 
that  suspicion  which  colonies  are  apt  to  feel  of  a  sort 
of  patronage  on  the  part  of  the  mother  country,  and 
which  sometimes  disposes  them  to  be  self-assertive,  may 
have  vanished  as  they  came  to  realize  that  the  old  coun- 
try was  proud  of  them  and  wished  to  treat  them  not  only 
as  a  daughter  but  as  an  equal.  Neither  do  they,  demo- 
crats as  they  are,  harbour  distrust  of  a  monarchy,  or 
deem  their  freedom  in  any  way  hampered  by  it.  The  love 
for  republicanism  in  the  abstract,  though  far  stronger 
in  Continental  Europe  than  in  England,  was  everywhere 
a  force  in  the  first  half  of  the  nineteenth  century.  It  has 
faded  away  in  the  second  half  throughout  the  British 
world,  because  the  solid  substance  of  freedom  has  been 
secured,  because  the  old  mischiefs  of  'monarchical  gov- 
ernment have  reappeared  in  republics,  because  men's 
minds  have  begun  to  be  occupied  with  economic  and 
social  rather  than  with  purely  political  questions.  The 
fact  that  the  British  Crown  is  titular  head  of  the  Au- 
stralian Commonwealth  will  not  render  the  working  of 
the  Constitution  less  truly  popular,  any  more  than  has 
befallen  in  Canada,  a  somewhat  less  democratic  country. 
So  far  as  the  internal  politics  of  Australia  are  concerned, 
she  will  take  her  own  course,  scarcely  affected  by  her  con- 
nexion with  England.  But  the  fact  that  she  is,  and  seems 
likely  to  remain,  a  part  of  the  British  Empire,  sharing 
in  the  enterprises  and  conflicts  and  responsibilities  of 
that  vast  body,  is  a  fact  of  the  highest  moment  for  her 
future  and  for  the  future  of  the  world.  Still  more  mo- 
mentous might  her  relation  to  the  Empire  become 


463  THE  AUSTRALIAN  COMMONWEALTH 

should  any  scheme  be  devised  for  giving  the  self-govern- 
ing Colonies  of  Britain  a  share  in  the  financial  liability 
for  common  defence,  together  with  a  voice  in  the  deter- 
mination of  a  common  foreign  policy.  The  difficulties 
of  constructing  any  constitutional  machinery  for  this 
purpose  are  obvious,  yet  perhaps  not  insurmountable. 
Should  any  such  arrangement  be  ever  reached,  it  will 
probably  be  reached  through  some  crisis  in  the  history 
of  the  Empire  itself. 

Sixty  years  ago  it  was  generally  believed  that  as  soon 
as  each  British  self-governing  colony  had  become  con- 
scious of  its  strength,  it  would  naturally  desire,  and  could 
not  be  refused,  its  independence.  But  the  last  sixty 
years  have  brought  with  them  many  favouring  condi- 
tions ;  and  among  these,  one  of  which  no  one  then 
thought,  the  long  reign  of  a  sovereign  whose  personal 
character,  by  its  purity,  simplicity  and  kindliness,  won 
such  reverence  and  affection,  not  only  for  herself,  but 
also  for  the  ancient  institutions  at  the  head  of  which 
she  stood,  that  the  prolongation  of  her  life  may  be 
reckoned  among  the  causes  which  have  kept  these  far- 
off  lands  a  part  of  the  British  realm  and  have  given  its 
actual  form  to  the  Commonwealth  of  Australia. 


IX 
OBEDIENCE 

THE  question  which  meets  on  the  threshold  of  their 
inquiries  all  who  have  speculated  on  the  nature  of  po- 
litical society  and  the  foundations  of  law  is  this:  What 
is  the  force  that  brings  and  keeps  men  under  govern- 
ments? or,  in  other  words,  What  is  the  ground  of 
Obedience? 

I.   THEORIES  REGARDING  POLITICAL  OBEDIENCE. 

The  answers  given  by  philosophers  to  this  question, 
while  varying  in  form,  group  themselves  under  two  main 
heads.  Some  assign  Fear  as  the  ground,  some  Reason. 
One  school  discovers  the  power  that  binds  men  to- 
gether as  members  of  a  State  in  Physical  Force,  acting 
upon  them  through  the  dread  of  death  or  other  physical 
evil.  The  other  conceives  it  to  lie  in  a  rational  view  of 
the  common  advantage,  which  induces  men  to  consent 
of  their  own  free-will  to  forgo  some  measure  of  their 
(supposed)  original  personal  independence  in  order  to 
obtain  certain  common  benefits.  Thus,  while  the  former 
school  finds  the  origin  of  law  in  Compulsion,  the  latter 
finds  it  in  Agreement. 

Both  schools  are  of  high  antiquity,  and  have  been 
represented  by  many  eminent  names.  One  gathers  from 
Plato  that  divers  sophists  maintained  the  former  thesis. 
It  is  in  substance  not  far  from  that  assigned  to  Thrasy- 


464  OBEDIENCE 

machus  in  the  Republic,  where  the  Sophist  says  that  Jus- 
tice is  nothing  but  the  advantage  of  the  stronger ;  and 
in  later  times  Hobbes  and  Bentham  are  eminent  among 
those  who  embrace  it.  The  other  view  is  most  familiar 
to  moderns  from  the  writings  of  Rousseau;  but  it  has 
a  long  and  interesting  history,  intertwined  with  that  of 
the  notions  of  the  State  of  Nature  and  the  Law  of  Na- 
ture, and  also  with  the  history  of  the  conception  of 
Sovereignty — topics  which  are  discussed  elsewhere  in 
this  volume.  Rousseau  grounds  obedience  on  the  origi- 
nal '  social  contract/  whereby  each  and  every  person 
agrees  with  every  other  to  forgo  his  natural  freedom 
by  constituting  a  State  which  is  to  act  for  all,  and  in 
which  the  citizen  recovers  his  freedom  because  he  is  him- 
self a  part  of  that  '  general  will '  to  which  he  renders 
a  reasonable  service.  The  Aristotelian  doctrine  -that 
men  are  by  their  very  constitution  sociable  creatures, 
naturally  drawn  to  create  and  to  live  in  communities, 
comes  nearer  to  the  second  view,  while  escaping  by  its 
generality  of  expression  the  errors  into  which  those  who 
set  political  society  upon  the  foundation  of  contract  have 
frequently  been  betrayed.  And  it  need  not  be  added  that 
many  other  philosophers  in  comparatively  modern  times, 
basing  the  State,  some  of  them  on  the  nature  of  man, 
some  on  eternal  reason  or  the  will  of  God,  have  held 
that  it  thereby  acquires  an  absolute  right  to  obedience 
from  its  members.  These  speculations,  however,  seldom 
touch  the  particular  point  I  propose  to  discuss  here,  viz. 
the  grounds  which  actually  dispose  men  to  obedience. 

Of  the  two  chief  older  theories,  that  which  represents 
men  as  led  by  reason  to  enter  into  a  Contract  has  of  late 
fallen  into  discredit,  being  indeed  so  evidently  opposed 
to  what  we  know  of  the  early  state  of  mankind  that  it 
may  be  doubted  whether  most  of  those  who  propounded 
or  have  adopted  it  did  not  mean  it  to  be  taken  rather  as 
an  apologue  or  mythical  presentment  of  moral  facts  than 
as  a  piece  of  history.  The  theory  of  Force  and  Fear,  on 
the  other  hand,  has  retained  much  of  its  vogue,  having 


OBEDIENCE  465 

connected  itself  with  a  system  of  jurisprudential  termino- 
logy which  is,  or  lately  was,  influential  in  England  and 
not  unknown  in  America.  According  to  Bentham  and 
his  followers,  there  is  in  every  State  a  Sovereign  who 
enjoys  unlimited  physical,  and  therefore  also  unlimited 
legal,  power.  His  might  makes  his  right.  He  rests  on 
Force  and  rules  by  Fear.  He  has  the  sole  right  of  issu- 
ing Commands.  His  Commands  are  Laws.  They  are 
enforced  by  Threats,  and  are  obeyed  in  respect  of  the 
apprehension  of  physical  harm  to  follow  on  disobedi- 
ence. Whether  those  who  adhere  to  this  body  of  doc- 
trine think  it  historically  true  as  an  account  of  the  origin 
of  law,  or  merely  adopt  it  as  a  concise  explanation  and 
summary  view  of  the  principles  on  which  modern  law 
and  highly  developed  forms  of  political  society  are  based, 
is  not  always  clear  from  the  language  they  use.  But  the 
importance  they  attach  to  Force  appears  not  only  from 
the  contempt  they  pour  on  the  contractual  theory  of 
government,  but  also  from  their  omission  to  refer  to  any 
facts  in  the  character  and  habits  of  mankind  except  those 
which  are  connected  with  Force  and  Fear  as  factors  in 
the  development  of  the  social  organism. 

A  little  reflection  will,  however,  convince  any  one  who 
comes  to  the  question  with  an  open  mind  that  both  these 
theories,  that  of  compulsion  as  well  as  that  of  contract, 
are  alike  incomplete,  and,  because  incomplete,  are  mis- 
leading. They  err,  as  all  systems  are  apt  to  err,  not  by 
pointing  to  a  wholly  false  cause,  but  by  extending  the 
efficiency  of  a  true  cause  far  beyond  its  real  scope. 
Rousseau  is  right  in  thinking  that  political  society  needs 
a  moral  justification,  and  that  the  principle  of  individual 
freedom  is  best  satisfied  where  every  one  obtains  a 
share  in  the  government  to  which  he  submits.  The  Con- 
tractualists  generally  may  find  a  solid  basis  for  authority 
in  the  fact  that  organized  society  does  actually  render 
to  each  of  its  members  some  return  for  the  so-called 
'  natural  liberty  '  which  he  has  surrendered.  Even  a  bad 
government  gives  him  at  least  a  measure  of  protection, 
80 


466  OBEDIENCE 

however  imperfect,  for  his  person  and  property  against 
the  attacks  of  any  one  but  the  government  itself.  Here 
there  is,  if  not  what  we  can  call  an  implied  contract,  at 
least  a  consideration,  a  sort  of  mutuality  of  service  in 
the  political  relation,  for  which  each  member  gives  some- 
thing, and  from  which  each  gains  something.  To  go 
further,  and  either  to  explain  the  growth  of  government 
by  a  conscious  bargain  at  some  past  moment,  or  to  con- 
ceive the  idea  of  such  a  bargain  as  present  to  the  bulk 
of  those  who  live  in  any  actual  society  now,  or  to  regard 
the  individual  members  of  society  as  entitled  to  act  upon 
contractual  principles  towards  their  government  and 
one  another,  is  to  plunge  at  once  into  what  are  not 
more  palpably  historical  errors  than  unworkable  prin- 
ciples. So  also  the  school  of  Thrasymachus  and  that 
which  claims  Hobbes  as  its  founder  are  right  in  feeling 
that  some  test  must  be  found  of  the  solidity  of  a  com- 
munity and  the  actual  working  strength  of  its  machi- 
nery; and  they  discover  this  in  the  fact  that  physical 
force  is  the  ultima  ratio  wherewith  to  coerce  the  disturb- 
ers of  the  community  and  the  transgressors  of  the  law. 
Without  force  in  the  background,  the  law  might  be 
defied.  It  is  when  the  men  of  this  school,  or  some  of 
them,  go  on  to  represent  physical  compulsion  as  the 
means  by  which  communities  have  been  in  fact  formed 
— though,  to  be  sure,  Hobbes  himself  alleges  a  contract 
as  the  very  first  step  l — and  Fear  as  the  motive  which 
in  fact  secures  respect  to  the  law  from  the  majority  of 
the  citizens,  that  they  depart  alike  from  history  and  from 
common  sense.  The  problem  of  political  cohesion  and 
obedience  is  not  so  simple  as  either  school  of  theorists 
would  represent  it. 

To  show  that  both  schools  are  historically  wrong 
would  not  be  difficult.  This  has  been  often  done  as 
against  such  of  the  Coritractualists  as  have  held  that 
conscious  reason  brought  men  out  of  the  State  of  Na- 

1  See  as  to  the  doctrine  of  Hobbes,  the  Essay  on  Sovereignty  which  follows  this 
Essay. 


OBEDIENCE  467 

ture  by  a  compact ;  and  if  the  historians  who  deal  with 
the  earlier  stages  of  human  progress  have  not  cared  to 
demolish  the  Physical  Force  doctrine,  this  may  have 
happened  because  none  has  thought  it  worth  while  to 
refute  a  theory  whose  flimsiness  they  have  perceived,  but 
which  they  have  deemed  to  lie  outside  the  sphere  of  his- 
tory. As  it  is  the  historian  who  best  understands  how 
much  Force  has  done  to  build  up  States,  so  he  most 
fully  sees  that  Force  is  only  one  among  many  factors, 
and  not  the  most  important,  in  creating,  moulding,  ex- 
panding and  knitting  together  political  communities. 
It  is  not,  however,  necessary  to  institute  any  historical 
inquiry  in  order  to  reach  this  conclusion.  An  easier 
course  is  to  interrogate  one's  own  consciousness,  and  to 
observe  one's  fellow  men.  The  problem  of  obedience  to 
government  and  law  is  part  of  the  larger  and  even  more 
obvious  problem  of  the  grounds  of  Obedience  in  general. 
Why  do  we  all  forgo  the  gratification  of  many  of  our 
personal  desires,  desires  in  themselves  harmless,  merely 
because  they  are  not  shared  by  others  ?  Why  do  we  go 
on  echoing  opinions  whose  soundness  we  more  than 
doubt?  Why  do  we  pursue  pleasures  which  give  us  no 
amusement,  but  rather  weariness?  Why  do  we  adhere 
to  a  party,  political  or  ecclesiastical,  of  whose  conduct 
we  often  disapprove  ?  Why  in  fact  is  so  large  a  part  of 
our  daily  conduct  determined,  not  by  our  own  natural 
preferences,  but  by  compliance  with  the  opinion  of  others 
or  submission  to  the  social  conditions  that  surround  us  ? 

II.    THE  GROUNDS  OF  OBEDIENCE  IN  GENERAL. 

Political  obedience  is  not  a  thing  by  itself,  but  a  form 
of  what  may  be  called  Compliance  in  general. 

The  grounds  or  motives  of  Compliance  can  be  summed 
up  under  five  heads.  Putting  them  in  the  order  of  what 
seems  to  be  their  relative  importance,  they  may  be  de- 
scribed as  the  following — Indolence,  Deference,  Sym- 
pathy, Fear,  Reason.  Let  us  consider  each  separately. 


468  OBEDIENCE 

By  Indolence  I  mean  the  disposition  of  a  man  to  let 
some  one  else  do  for  him  what  it  would  give  him  trouble 
to  do  for  himself.  There  are  of  course  certain  persons 
to  whom  exertion,  mental  as  well  as  physical,  is  pleasura- 
ble, and  who  delight  in  the  effort  of  thinking  out  a  pro- 
blem and  making  a  decision  for  themselves.  There  are 
also  moments  in  the  lives  of  most  of  us  when  under  the 
influence  of  some  temporary  excitement  we  feel  equal  to 
a  long  succession  of  such  efforts.  But  these  are  excep- 
tional persons  and  rare  moments.  To  the  vast  ma- 
jority of  mankind  nothing  is  more  agreeable  than  to 
escape  the  need  for  mental  exertion,  or,  speaking  more 
precisely,  to  choose  only  those  forms  of  exertion  which 
are  directly  accompanied  by  conscious  pleasure  and 
involve  little  fatigue.  In  a  great  many  exertions  of 
thought  resulting  in  determinations  of  the  will  there 
is  no  pleasure,  or  at  any  rate.no  conscious  pleasure, 
or  at  any  rate  no  pleasure  which  is  not  outweighed 
by  an  accompanying  annoyance.  Such  exertions  may 
relate  to  things  in  which  we  have  slight  personal 
interest,  and  therefore  no  desires  to  gratify,  or  to 
things  in  which  our  personal  interest  is  so  doubt- 
ful that  we  shrink  from  the  trouble  of  ascertain- 
ing which  way  it  lies,  and  are  glad  to  shift  the  respon- 
sibility from  ourselves  to  whoever  will  undertake  it  for 
us.  The  ascendency  of  one  of  a  married  couple,  for  in- 
stance, or  of  one  member  of  a  group  of  persons  living 
together,  is  usually  acquired  in  some  such  way.  It  is  not 
necessarily  the  will  really  strongest  that  in  these  cases 
prevails,  but  the  will  which  is  most  active,  most  ready  to 
take  a  little  trouble,  to  exert  itself  on  trivial  occasions 
and  undertake  small  responsibilities.  Persons  of  a  reso- 
lute and  tenacious  character  are  sometimes  also  hesi- 
tating and  undecided,  because  they  cannot  be  at  the 
trouble  of  setting  to  work,  for  the  little  questions  of  daily 
life,  their  whole  machinery  of  deliberation  and  volition. 
In  five  persons  out  of  six  the  instinct  to  say  Yes  is 
stronger  than  the  instinct  to  say  No — were  it  not  so, 


OBEDIENCE  469 

there  would  be  fewer  marriages — and  this  is  specially 
so  when  the  person  who  claims  consent  possesses  ex- 
ceptional force  and  self-confidence.  In  other  words, 
most  of  us  hate  trouble  and  like  to  choose  the  line  of  least 
resistance.  In  tropical  Africa  the  country  is  covered  by 
a  network  of  narrow  footpaths,  made  by  the  natives. 
These  paths  seldom  run  straight,  and  their  flexuosities 
witness  to  small  obstacles,  here  a  stone  and  there  a 
shrub,  which  the  feet  of  those  who  first  marked  them 
avoided.  To-day  one  may  perceive  no  obstacle.  The 
prairie  which  the  path  crosses  may  be  smooth  and  open, 
yet  every  traveller  follows  the  windings,  because  it  is 
less  trouble  to  keep  one's  feet  in  the  path  already  marked 
than  it  is  to  take  a  more  direct  route  for  one's  self.  The 
latter  process  requires  thought  and  attention ;  the  for- 
mer does  not. 

Nor  is  the  compliance  of  indolence  less  evident  in 
thought  than  in  action.  To  most  people,  nothing  is 
more  troublesome  than  the  effort  of  thinking.  They  are 
pleased  to  be  saved  the  effort.  They  willingly  accept 
what  is  given  them  because  they  have  nothing  to  do 
further  than  to  receive  it.  They  take  opinions  presented 
to  them,  and  assume  rules  or  institutions  which  they 
are  told  to  admire  to  be  right  and  necessary,  because 
it  is  easier  to  do  this  than  to  form  an  independent  judge- 
ment. The  man  who  delivers  opinions  to  others  may 
be  inferior  to  us  in  physical  strength,  or  in  age,  or  in 
knowledge,  or  in  rank.  We  may  think  ourselves  quite 
as  wise  a.s  he  is.  But  he  is  clear  and  positive,  we  are 
lazy  or  wavering ;  and  therefore  we  follow  him. 

Under  the  name  of  Deference  it  is  convenient  to  in- 
clude the  various  cases  in  which  some  emotion,  draw- 
ing one  person  to  another,  disposes  the  former  to  comply 
with  the  will  of  the  latter.  Whether  the  emotion  be 
love,  or  reverence,  or  esteem,  or  admiration,  a  persua- 
sion of  superior  goodness  or  of  superior  wisdom,  there 
is  a  feeling  on  the  part  of  the  person  attracted  which 
makes  him  ready  to  sacrifice  his  own  impulses,  if  they 


470  OBEDIENCE 

be  not  of  unusual  strength,  to  the  will  of  the  person 
loved  or  reverenced  or  admired.  Wisdom  and  goodness 
give  their  possessor  a  legitimate  authority,  wisdom  in 
making  him  appear  as  a  fit  person  to  follow  where  the 
question  is  of  choosing  means,  goodness  where  it  is  a 
question  of  the  choice  of  ends ;  and  the  belief  that  these 
qualities  exist  in  the  person  revered  or  esteemed  is  just 
as  effective  as  the  reality,  such  belief  being  obviously 
the  result  of  many  causes  besides  a  rational  scrutiny. 
The  force  of  the  feeling  of  deference  in  securing  com- 
pliance or  adhesion  varies  in  different  nations  and  in 
different  states  of  society.  The  advantages,  for  instance, 
which  rank,  wealth  and  learning  give  to  a  candidate  for 
any  public  post  in  a  modern  country  like  France  or  Eng- 
land, only  faintly  represent  the  authority  which  belonged 
to  birth,  learning  and  sanctity,  whether  real  or  supposed, 
in  simpler  times.  A  so-called  holy  man  in  the  Musulman 
or  Hindu  East,  a  Fakir  or  a  Guru,  exerts  to-day  enor- 
mous power  in  his  own  neighbourhood,  in  respect  far 
less  of  any  fear  of  the  harm  he  can  do  than  simply  of  the 
veneration  he  inspires.  Even  if  he  does  not  claim  a  di- 
rect supernatural  mission,  his  words  carry  great  weight. 
And  there  is  abundant  evidence  in  the  careers  of  famous 
Europeans  in  the  East  to  show  how  readily  in  primitive 
times  a  remarkable  character  and  career  would  perma- 
nently attach  a  halo,  not  only  of  admiration  but  of  sub- 
missive deference,  to  the  descendants  of  such  a  person 
or  to  the  occupant  of  the  office  he  had  filled. 

By  Sympathy  as  a  ground  of  obedience  I  mean  not 
merely  the  emotion  evoked  by  the  sight  of  a  corre- 
sponding emotion  in  another,  but  the  various  forms  of 
what  may  be  called  the  associative  tendency  of  mankind, 
the  disposition  to  join  in  doing  what  one  sees  others 
doing,  or  in  feeling  as  others  feel.  The  root  of  this  in- 
stinct lies  very  near  Indolence;  for  no  way  of  saving 
effort  is  so  obvious  as  to  do  what  others  have  done  or 
are  doing;  but  it  is  not  quite  the  same  thing  as  Indo- 
lence, for  it  is  a  tendency  strong  among  some  of  the  less 


OBEDIENCE  471 

indolent  races  of  mankind,  and  each  of  us  must  have 
noted  from  his  own  personal  experience  that  its  action 
depends  as  much  upon  the  susceptibility  of  the  imagina- 
tion as  upon  the  slowness  or  slackness  of  the  will.  There 
is  hardly  a  more  potent  factor  than  this  in  the  formation 
of  communities,  whether  social  or  political,  because  it 
unites  with,  if  it  be  not  almost  identical  with,  what  we 
call  party  and  civic  spirit,  substituting  a  sense  of  and  a 
pleasure  in  the  exercise  of  the  collective  will  for  the 
pleasure  of  exerting  the  individual  will,  and  thus  tending 
to  subordinate  the  latter,  and  to  make  it  rejoice  in  fol- 
lowing, perhaps  blindly,  the  will  which  directs  the  com- 
mon action.  The  shock  to  individual  pride  is  avoided, 
because  each  man  acts  spontaneously,  at  the  bidding  of 
his  own  emotion,  and  each  feels  that  what  he  may  lose 
as  an  individual  he  recovers  as  a  member  of  the  body, 
and  that  with  a  better  chance  of  indulging  his  passions 
at  the  expense  of  his  antagonists.  The  spirit  of  the  body 
seems  to  live  in  and  inspire  him,  increasing  indefinitely 
the  force  of  his  own  personality.  Obedience  to  the  di- 
recting authority  is  here  a  first  necessity,  and  becomes 
the  more  implicit  the  greater  the  dangers  of  whatever 
enterprise  the  body  may  undertake.  As  fighting  covers 
great  part  of  the  life  of  primitive  communities,  the  dis- 
position to  obey  becomes  early  strong  among  them,  be- 
cause in  nothing  is  obedience  so  essential  as  in  war. 

Perhaps  these  three  sources  of  the  tendency  to  comply 
are  really  only  forms  of,  as  they  are  certainly  all  closely 
connected  with,  the  disposition  to  imitate  which  is  so 
strong,  not  only  in  man,  but  throughout  the  animal 
kingdom,  so  far  as  we  can  observe  it.  When  ninety- 
nine  sheep  one  after  another  jump  over  a  fence  at  pre- 
cisely the  point  where  the  first  of  the  flock  has  jumped 
it,  they  reveal  a  propensity  similar  to  that  which  makes 
a  file  of  savages  travelling  over  a  wilderness  each  tread 
in  the  footsteps  of  his  predecessor,  or  that  which  soon 
stamps  the  local  accent  upon  the  tongue  of  a  child 
brought  from  some  other  part  of  the  country,  where  the 


472  OBEDIENCE 

mode  of  speech  was  different.  There  is  evidently  a  psy- 
chological, doubtless  indeed  a  physiological,  cause  for 
this  general  and  powerful  tendency  to  reproduce  the 
acts  and  ways  of  other  creatures,  even  where,  as  in  the 
case  of  a  local  accent,  there  is  no  motive  whatever  for 
doing  so.  Conscious  imitation  is  of  course  frequently 
explainable  by  the  desire  to  please,  or  by  a  perception 
of  the  advantage  of  doing  as  others  do.  But  there  are 
many  facts  to  show  that  its  roots  lie  deeper  and  that  it 
is  due  largely  to  a  sympathy  between  the  organs  of  per- 
ception and  those  of  volition,  which  goes  on  in  uncon- 
scious or  subconscious  states  of  the  mind,  and  which 
makes  the  following  of  others,  the  reproduction  of  their 
acts,  or  the  adoption  of  their  ideas,  to  be  the  path  of  least 
resistance,  which  is  therefore  usually  followed  by  weaker 
natures,  and  frequently  even  by  strong  ones. 

Of  Fear  and  of  Reason  nothing  need  be  said,  because 
the  school  of  Hobbes  and  Bentham  for  the  one,  and 
the  apostles  of  democratic  theory  for  the  other,  have 
said  more  than  all  that  is  needed  to  show  the  part  they 
respectively  play  in  political  society.  Fear  is  no  doubt 
the  promptest  and  most  effective  means  of  restraining 
the  turbulent  or  criminal  elements  in  society;  and  is  of 
course  the  last  and  necessary  expedient  when  authority 
either  legally  established  or  actually  dominant  is  threat- 
ened by  insurrection.  Reason  operates,  and  operates 
with  increasing  force  as  civilization  advances,  upon  the 
superior  minds,  leading  them  to  forgo  the  assertion  of 
their  own  wills  even  where  such  assertion  would  be  in 
itself  innocent  or  beneficial,  merely  because  the  authority 
which  rules  in  the  community  has  otherwise  directed. 
Reason  teaches  the  value  of  order,  reminding  us  that 
without  order  there  can  be  little  progress,  and  preaches 
patience,  holding  out  a  prospect  that  evils  will  be 
amended  by  the  general  tendency  for  truth  to  prevail. 
Reason  suggests  that  it  is  often  better  that  the  law 
should  be  certain  than  that  it  should  be  just,  that  an 
existing  authority  should  be  supported  rather  than  that 


OBEDIENCE  478 

strife  should  be  caused  by  the  attempt  to  set  up  a  better 
one.  So  also  Reason  disposes  minorities  to  acquiesce 
even  where  a  majority  is  tyrannical,  in  the  faith  that 
tyranny  will  provoke  a  reaction  and  be  overthrown  by 
peaceable  discussion. 

Allowing  for  the  efficacy  of  Fear  as  a  motive  acting 
powerfully  upon  the  ruder  and  more  brutish  natures,  and 
for  that  of  Reason  as  guiding  the  more  thoughtful  and 
gentle  ones,  and  admitting  that  neither  can  be  dispensed 
with  in  any  community,  their  respective  parts  would 
nevertheless  seem  to  be  less  important  than  are  the 
parts  played  by  the  three  first-mentioned 'motives.  If 
it  were  possible  either  in  the  affairs  of  the  State,  or  in  the 
private  relations  of  life,  to  enumerate  the  number  of  in- 
stances in  which  one  man  obeys  another,  we  should  find 
the  cases  in  which  either  the  motive  of  Fear  or  the  mo- 
tive of  Reason  was  directly  and  consciously  present  to 
be  comparatively  few,  and  their  whole  collective  pro- 
duct in  the  aggregate  of  human  compliance  compara- 
tively small.  If  one  may  so  express  it,  in  the  sum  total 
of  obedience  the  percentage  due  to  Fear  and  to  Reason 
respectively  is  much  less  than  that  due  to  Indolence,  and 
less  also  than  that  due  to  Deference  or  to  Sympathy. 

In  a  large  proportion  of  the  cases  arising  in  private 
life  the  motive  of  Fear  cannot  be  invoked  at  all,  because 
there  is  no  power  of  inflicting  harm ;  and  Reason  just 
as  little,  because  the  persons  who  habitually  apply  ratio- 
cinative  processes  to  their  actions  are  after  all  few.  It 
may  be  said  that  conscious  thought  is  not  ordinarily  ap- 
plied to  action  because  Habit  supplies  its  place,  and 
Habit,  enabling  and  disposing  us  to  do  without  con- 
sideration the  acts  which  otherwise  would  need  to  be 
considered,  is  in  fact  fossil  reason.  That  is  largely  so, 
but  Habit  is  still  more  often  the  permanent  and  unchang- 
ing expression  of  Indolence.  Nothing  becomes  a  habit 
so  quickly  as  does  the  acquiescence  due  to  Indolence, 
nor  does  any  tendency  strike  its  roots  so  deep.  And 
though  it  is  true  as  regards  public  or  civic  matters  that 


474  OBEDIENCE 

physical  force  is  always  at  hand  in  the  background,  we 
must  also  recognize  that  the  background  is  not  in  fact 
usually  visible  to  the  majority  of  those  who  act  accord- 
ing to  the  laws  which  they  obey.  They  do  not  neces- 
sarily, nor  even  generally,  think  of  the  penalties  of  the 
law.  They  defer  to  it  from  respect  and  because  other 
people  defer ;  they  are  glad  that  it  is  there  to  save  them 
and  other  people  from  trouble.  This  attitude  is  not 
confined  to  civilized  States,  but  has  existed  always,  even 
in  unsettled  societies,  where  the  law  might  not  be  able 
to  prevail  but  for  the  aid  of  private  citizens. 

Of  the  three  springs  of  Obedience  which  have  been 
represented  as  on  the  whole  the  stronger,  Indolence 
disguises  itself  under  Deference  and  Deference  is  inten- 
sified by  Sympathy ;  that  is  to  say,  the  tendency  of  men 
to  let  others  take  decisions  for  them  which  they  might 
take  for  themselves  becomes  much  stronger  and  more 
constant  when  they  have  any  ground  for  believing  others 
to  possess  some  sort  of  superiority,  while  the  disposition 
to  admit  superiority  is  incomparably  more  active  where 
a  number  of  other  persons  are  perceived  to  be  also  ad- 
mitting it.  A  society  like  that  in  which  modern  men 
live  in  England  or  America  is  apt  to  suppose  that  the 
admission  of  superiority  mortifies  a  man's  pride,  but 
this  is  so  far  from  being  generally  true  that  the  attitude 
of  submission  is  to  most  men  rather  pleasurable  than 
the  reverse.  So  Protestants  have  been  apt  to  assume 
that  the  natural  and  normal  attitude  of  man  in  religious 
matters  is  independence — a  wish  to  seek  out  truth  for 
himself,  a  sense  of  the  duty  of  consulting  his  own  con- 
science ;  whereas  the  opposite  is  the  fact,  and  those  re- 
ligious systems  take  the  greatest  hold  upon  man  which 
leave  least  to  individual  choice  and  inculcate,  not  merely 
humility  towards  the  Unseen  Powers,  but  the  duty  of 
implicitly  accepting  definite  traditions  or  of  revering  and 
following  visible  ecclesiastical  guides. 

Some  philosophers  have  talked  of  Will  as  the  distinc- 
tive note  of  Man — and  in  so  far  as  the  exercise  of  Will 


OBEDIENCE  475 

implies  a  conscious  exertion  of  rational  choice  it  may  be 
admitted  to  be  characteristic  of  him  alone.  But  in  mere 
tenacity  of  purpose  and  persistence  in  a  particular  course 
other  animals  run  him  hard.  A  rogue  elephant  or  a 
bucking  mustang  can  show  as  much  persistence,  some- 
times mingled  with  a  craft  which  seeks  to  throw  the  op- 
ponent off  his  guard,  and  bides  its  time  till  the  most 
favourable  moment  for  resistance  arrives.  In  most  men 
the  want  of  individual  Will — that  is  to  say,  the  proneness 
to  comply  with  or  follow  the  will  of  another — is  the  spe- 
cially conspicuous  phenomenon.  It  is  for  this  reason 
that  a  single  strenuous  and  unwearying  will  sometimes 
becomes  so  tremendous  a  power.  There  are  in  the 
world  comparatively  few  such  wills,  and  when  one  ap- 
pears, united  to  high  intellectual  gifts,  it  prevails  which- 
ever way  it  turns,  because  the  weaker  bow  to  it  and 
gather  round  it  for  shelter,  and,  in  rallying  to  it,  increase 
its  propulsive  or  destructive  power.  It  becomes  almost 
a  hypnotizing  force.  One  perceives  this  most  strikingly 
among  the  weaker  races  of  the  world.  They  are  not 
necessarily  the  less  intelligent  races.  In  India,  for  in- 
stance, an  average  European  finds  many  Hindus  fully 
his  equals  in  intelligence,  in  subtlety,  and  in  power  of 
speech;  but  he  feels  his  own  volitions  and  his  whole 
personality  to  be  so  much  stronger  than  that  of  the  great 
bulk  of  the  native  population  (excluding  a  very  few 
races)  that  men  seem  to  him  no  more  than  stalks  of  corn 
whom  he  can  break  through  and  tread  down  in  his  on- 
ward march.  This  is  how  India  was  conquered  and  is 
now  held  by  the  English.  Superior  arms,  superior  dis- 
cipline, stronger  physique,  are  all  secondary  causes. 
There  are  other  races  far  less  cultivated,  far  less  subtle 
and  ingenious,  than  the  Hindus,  with  whom  Europeans 
have  found  it  harder  to  deal,  because  the  tenacity  of  pur- 
pose and  the  pride  of  the  individual  were  greater.  This 
is  the  case  with  the  North-American  Indians,  who 
fought  so  fiercely  for  their  lands  that  it  has  been  esti- 
mated that  in  the  long  conflict  they  maintained  they  have 


476  OBEDIENCE 

probably  killed  more  white  men  than  they  have  lost  at 
the  hands  of  the  whites.  Yet  they  were  far  inferior  in 
weapons  and  in  military  skill ;  and  they  had  no  religious 
motives  to  stimulate  their  valour. 

No  one  can  read  the  history  of  the  East  without  being 
struck  by  the  extraordinary  triumphs  which  a  single 
energetic  will  has  frequently  achieved  there.  A  military 
adventurer,  or  the  chief  of  a  petty  tribe,  suddenly  rises 
to  greatness,  becomes  the  head  of  an  army  which  attacks 
all  its  neighbours,  and  pursues  a  career  of  unbroken 
conquest  till  he  has  founded  a  mighty  empire.  Perhaps 
he  raises  vast  revenues,  constructs  magnificent  works, 
establishes  justice,  creates  a  system  of  administration 
which  secures  order  and  peace  during  his  lifetime.  Men 
like  Thothmes  III,  Cyrus,  and  Darius  son  of  Hystaspes, 
Khosroes  Anushirwan,  Saladin,  Tamerlane,  Baber, 
Akbar  the  Great,  Hyder  Ali  are  in  their  several  ways 
only  the  most  striking  instances  of  the  tremendous  effect 
which  a  man  of  exceptional  force  and  activity  produces 
among  Oriental  peoples1.  One  asks  why  this  happens 
chiefly  in  the  East.  Is  there  a  greater  difference  in 
Asiatic  than  in  European  peoples  between  the  few  most 
highly-gifted  men  and  the  great  mass  of  humanity,  so 
that  where  the  ordinary  characters  are  weak  one  strong 
character  prevails  swiftly  and  easily?  Or  is  the  cause 
rather  to  be  sought  in  the  fact  that  in  the  East  there  are 
no  permanent  institutions  of  government  to  be  over- 
thrown? That  which  is  strong  and  permanent  there — 
viz.  the  customs,  religious  and  legal,  of  the  people — a 
ruler  does  not  (except  in  a  fit  of  insanity)  venture  to 
touch,  while  the  thrones  of  neighbouring  potentates  go 
down  at  a  stroke  before  him.  In  mediaeval  and  modern 
Europe,  the  weakness  of  the  ordinary  man  was  and  is 
entrenched  behind  a  fabric  of  government  and  law,  which 
the  strongest  individual  will  cannot  overthrow ;  and  it  is 

1  Some  of  these  succeeded  to  thrones  already  established,  but  their  careers  illus- 
trate none  the  less  the  results  effected  by  brilliant  gifts  appearing  in  the  midst  of  a 
comparatively  inert  people. 


OBEDIENCE  177 

only  when  this  fabric  has  been  shattered  by  a  revolution, 
as  happened  in  France  at  the  end  of  the  eighteenth  cen- 
tury, that  the  adventurer  of  genius  and  volition  has  a 
chance  of  rivalling  the  heroes  of  the  East. 

Thus  the  comparative  stability  of  governments  in 
mediaeval  and  modern  Europe  does  not  disprove  the 
view  which  finds  in  the  force  of  individual  will,  and  the 
tendency  of  average  men  to  yield  to  it,  a  potent  factor 
in  compelling  obedience.  For  in  the  European  countries 
the  resistance  offered  to  the  ambition  of  such  a  will  is 
effective,  not  so  much  because  ordinary  men  are  them- 
selves more  independent  and  more  capable  of  opposition 
as  because  their  superior  intelligence  has  built  up  well- 
compacted  systems  of  polity  to  which  obedience  has  by 
long  habit  become  attached.  Traditions  of  deference 
and  loyalty  have  grown  up  around  these  systems,  so  that 
they  enable  individuals  to  stand  firmly  together,  and  con- 
stitute a  solid  bulwark  against  any  personality  less  force- 
ful than  that  of  a  Julius  Caesar  or  a  Buonaparte. 

To  this  explanation  one  may  perhaps  add  another. 
In  the  East  the  monarch  is  as  a  rule  raised  so  far  above 
his  subjects  that  they  are  all  practically  on  a  level,  as 
compared  with  him ;  and  those  who  are  for  the  moment 
powerful  are  powerful  in  virtue  of  his  favour,  which  has 
elevated  and  may  at  any  moment  abase  them.  This  has 
long  been  the  case  in  Musulman  States,  and  was  to  a 
large  extent  true  even  in  the  Byzantine  Empire.  It  is 
in  some  degree  true  in  Russia  now.  Where  there  is  no 
land-holding  or  clan-leading  aristocracy,  nor  any  richly 
endowed  hierarchy,  there  may  be  nothing  to  diminish 
the  impression  of  overwhelming  power  which  the  sove- 
reign's position  produces.  Hence  there  may  be  no  order 
of  men  to  set  the  example  of  an  independence  of  feeling 
and  attitude  which  springs  from  their  position  as  the 
leaders  of  their  dependents  and  as  entitled  to  be  con- 
sulted by  the  Crown.  Such  an  order  of  men  existed  in 
the  feudal  aristocracy  of  the  Middle  Ages,  who  have 
done  much  to  create  a  type  of  character  in  the  States  of 


478  OBEDIENCE 

modern  Europe.  To  them  has  now  succeeded,  in  some 
modern  countries,  a  so-called  aristocracy  of  wealth, 
which,  vain  as  it  may  be  of  its  opportunities  for  influ- 
encing others,  is  much  less  stable  than  was  the  land- 
holding  class  of  old  days,  and  much  less  high-spirited. 
Meanwhile  the  general  levelling  down  and  up  which  has 
created  what  we  call  modern  democracy  has,  in  reducing 
the  number  of  those  whom  rank  and  tradition  had  made 
'  natural  leaders,'  increased  the  opportunities  of  strong- 
willed  and  unscrupulous  men,  restless  and  reckless, 
versed  in  popular  arts,  and  adroitly  using  that  most 
powerful  of  all  agents  for  propagating  uniformity  of 
opinion  which  we  call  the  newspaper  press,  powerful  be- 
cause it  drives  the  individual  to  believe  that  if  he  differs 
from  the  mass  he  must  be  wrong.  Such  a  man  may  have 
a  career  in  a  huge  democracy  which  he  could  not  have 
had  a  century  ago,  because  the  forces  that  resist  are 
fewer  and  feebler  to-day  than  they  were  then,  and  the 
multitude  is  more  easily  fascinated  by  audacity  or  force 
of  will,  apart  from  moral  excellence,  apart  from  intel- 
lectual distinction,  than  is  an  aristocratic  society. 

It  may  help  to  explain  the  theory  I  am  trying  to  pre- 
sent if  we  pause  for  a  moment  to  examine  the  influences 
under  which  the  habit  of  obedience  is  first  formed  in  the 
individual  man  and  in  the  nascent  community.  For  the 
individual,  it  begins  in  the  Family ;  and  it  grows  up  there 
only  to  a  small  extent  by  the  action  of  Force  and  Fear. 
The  average  child,  even  in  the  days  of  a  discipline 
harsher  than  that  which  now  obtains,  did  not  as  a  rule 
act  under  coercion,  but  began  from  the  dawn  of  con- 
sciousness to  comply  with  the  wish  of  the  parent  or  the 
nurse,  partly  from  the  sense  of  dependence,  partly  from 
affection,  partly  because  it  saw  that  other  children  did 
the  like.  Force  might  sometimes  be  resorted  to;  but 
force  was  in  most  cases  a  secondary  and  subsidiary 
agency.  Nor  did  force  succeed  so  well  as  softer  methods. 
Everybody  knows  that  the  children  who  have  been  most 
often  punished  are  not  the  most  obedient,  nor  is  this 


OBEDIENCE  479 

merely  because,  being  naturally  self-willed,  they  have 
needed  more  correction.  After  those  little  squalls  of 
aimless  passion  which  belong  to  a  certain  period  in  the 
child's  life  have  passed  away,  the  boy  usually  moves  as  a 
matter  of  course  at  his  parents'  bidding  until  the  age  is 
reached  when  circumstances  oblige  him  to  act  for  him- 
self, or  when  the  sense  of  independence  is  stimulated 
by  perceiving  that  others  of  his  own  age  will  despise  him 
if  he  remains  too  submissive.  The  child  whose  constant 
impulse  is  to  disobey  is  as  likely  to  turn  out  ineffective 
as  the  child  who  obeys  too  readily;  for  perversity  is  as 
frequently  due  to  want  of  affection,  sympathy  and  com- 
mon sense  as  to  exceptional  force  of  will. 

Thus  most  people  enter  adult  life  having  already 
formed  the  habit  of  obeying  in  many  things  where  Force 
and  Fear  do  not  come  in  at  all,  but  in  which  the  most 
obvious  motive  is  the  readiness  to  be  relieved  of  trouble 
and  responsibility  by  following  the  directions  of  some 
one  else,  presumably  superior.  They  have  also  formed 
during  boyhood  the  habit  of  adopting  the  opinions  of 
those  around  them.  An  acute  observer  has  said  that  the 
chief  fault  of  the  English  public  school  is  that  it  makes 
this  habit  far  too  strong.  Custom — that  is  to  say,  what- 
ever is  established  and  obeyed — has  great  power  over 
them.  No  conservatism  surpasses  that  of  the  schoolboy. 

It  would  not  be  safe  to  try  to  find  a  general  explana- 
tion of  the  growth  of  political  communities  in  the  pheno- 
mena of  domestic  life,  though  it  was  a  favourite  doctrine 
of  a  past  generation  that  the  germ  or  the  type  of  the 
State  was  to  be  found  in  the  Family.  There  are  some 
races  among  whom  the  Family  and  its  organization  seem 
to  have  played  no  great  part.  But  it  is  clear  that  in 
primitive  societies  three  forces,  other  than  Fear,  have 
been  extremely  powerful — the  reverence  for  ancient  line- 
age, the  instinctive  deference  to  any  person  of  marked 
gifts  (with  a  disposition  to  deem  those  gifts  superna- 
tural), and  the  associative  tendency  which  unites  the 
members  of  a  group  or  tribe  so  closely  together  that  the 


480  OBEDIENCE 

practice  of  joint  action  supersedes  individual  choice. 
These  forces  have  imprinted  the  habit  of  obedience  so 
deeply  upon  early  communities  that  it  became  a  tra- 
dition, moulding  the  minds  of  succeeding  generations. 
Physical  force  had  plenty  of  scope  in  the  strife  of  clans 
or  cities,  or  (somewhat  later)  of  factions,  with  one  an- 
other ;  but  in  building  up  the  clan  or  the  city  it  was  hardly 
needed,  for  motives  more  uniform  and  steady  in  their 
efficiency  were  at  work.  To  pursue  this  topic  would  lead 
us  into  a  field  too  wide  for  this  occasion ;  yet  it  is  well 
to  note  two  facts  which  stand  out  in  the  early  history  of 
those  communities  in  which  Force  and  Fear  might  seem 
to  have  had  most  to  do  with  the  formation  of  govern- 
ments, and  of  the  habit  of  obedience  to  authority.  One 
is  the  passionate  and  persistent  attachment  to  a  par- 
ticular reigning  family,  apart  from  their  personal  gifts, 
apart  from  their  power  to  serve  the  community  or  to 
terrify  it.  The  Franks  in  Gaul  during  the  seventh  and 
eighth  centuries  were  as  fierce  and  turbulent  a  race  as 
the  world  has  ever  seen.  Their  history  is  a  long  record 
of  incessant  and  ferocious  strife.  From  the  beginning 
of  the  seventh  century  the  Merwing  kings,  descendants 
of  Clovis,  became,  with  scarcely  an  exception,  feeble  and 
helpless.  Their  power  passed  to  their  vizirs,  the  Mayors 
of  the  Palace,  who  from  about  A.D.  638  onwards  were 
kings  de  facto.  But  the  Franks  continued  to  revere  the 
blood  of  Clovis,  and  when,  in  656,  a  rash  Mayor  of  the 
Palace  had  deposed  a  Merwing  and  placed  his  own  son 
on  the  throne,  they  rose  at  once  against  the  insult  offered 
to  the  ancient  line ;  and  its  scions  were  revered  as  titular 
heads  of  the  nation  for  a  century  longer,  till  Pippin  the 
Short,  having  induced  the  Pope  to  pronounce  the  de- 
position of  the  last  Merwing  and  to  sanction  the  transfer 
of  the  crown  to  himself,  sent  that  prince  into  a  mona- 
stery. This  instance  is  the  more  remarkable  because  the 
Franks,  being  Christians  in  doctrine  if  not  in  practice, 
can  hardly  have  continued  to  hold  the  divine  origin  of 
their  dynasty. 


OBEDIENCE  481 

The  other  fact  to  be  dwelt  upon  is  this,  that  where 
religion  comes  into  the  matter  we  discover  an  associa- 
tive tendency  of  immense  strength,  which  binds  men  into 
a  community,  and  wins  obedience  for  those  who,  whether 
as  priests  or  as  kings,  embody  the  unity  of  the  com- 
munity, who  represent  its  collective  relation  to  the  Un- 
seen Powers,  who  approach  them  with  its  collective  ser- 
vice of  prayers  or  sacrifice.  Altars  have  probably  done 
even  more  than  hearths  to  stimulate  patriotism,  espe- 
cially among  those  who,  like  the  Romans,  had  a  sort  of 
domestic  altar  for  every  hearth,  and  kept  up  a  worship 
of  family  and  clan  spirits  beside  the  worship  of  the  na- 
tional gods.  It  may  be  said  that  the  power  of  religion 
in  welding  men  together  and  inducing  them  to  obey 
kings  or  magistrates  or  laws  is  due  to  the  element  of 
Fear  in  religion.  Such  an  element  has  no  doubt  been 
at  work,  but  its  influence  is  more  seen  in  the  requirement 
of  sacrifices  to  the  deities  themselves  than  in  enforcing 
obedience  to  the  authorities  and  institutions  of  the  State. 
What  commends  these  latter  to  reverence  is  rather  the 
belief  that  their  divine  appointment  gives  them  a  claim 
on  the  affection  of  the  citizens,  and  makes  it  a  part  of 
piety  as  well  as  of  patriotism  to  support  them.  In  the 
Old  Testament,  for  instance,  the  love  of  Jehovah,  and 
the  sense  of  gratitude  to  Him  for  His  favours  to  His 
people,  are  motives  invoked  as  no  less  potent  than  the 
dread  of  His  wrath.  There  has  always  been  a  tendency, 
since  Christianity  lost  its  first  freshness  and  power,  to 
insist  upon  the  more  material  motives,  upon  those 
which  appear  palpable  and  ponderable,  such  as  the  fear 
of  future  punishment,  rather  than  on  those  of  a  more 
refined  and  ethereal  quality.  But  it  was  not  by  appealing 
to  these  lower  motives  that  Christianity  originally  made 
its  way  in  the  Roman  Empire.  The  element  of  Fear, 
though  not  wholly  absent  from  the  New  Testament, 
plays  a  very  subordinate  part  there,  and  became  larger 
in  mediaeval  and  modern  times.  Yet  it  may  be  doubted 
whether,  in  growing  stronger,  it  increased  the  efficiency 
31 


482  OBEDIENCE 

of  Christianity  as  an  engine  of  moral  reform.  '  Perfect 
love  casteth  out  fear.'  It  was  the  gospel  of  love,  and 
not  the  fear  of  hell,  that  conquered  the  world,  and  made 
men  and  women  willing  to  suffer  death  for  their  faith. 
The  martyrs  in  the  persecutions  under  Decius  and  Dio- 
cletian, and  the  Armenian  martyrs  of  1895,  who  were 
counted  by  thousands,  overcame  the  terror  of  impend- 
ing torture  and  death,  not  from  any  thought  of  penalties 
in  a  world  to  come,  but  from  the  sense  of  honour  and 
devotion  which  forbade  them  to  deny  the  God  whom 
they  and  their  parents  or  forefathers  had  worshipped. 

Returning  to  the  general  question  of  the  disposition 
of  the  average  man  to  follow  rather  than  to  make  a 
path  for  himself,  it  may  be  remarked  that  the  abstract 
love  of  liberty,  the  desire  to  secure  self-government  for 
its  own  sake,  apart  from  the  benefits  to  be  reaped  from 
it,  has  been  a  comparatively  feeble  passion,  even  in 
nations  far  advanced  in  political  development.  It  is  not 
easy  to  establish  this  proposition  by  instances,  because 
wherever  arbitrary  power  is  exercised,  there  are  pretty 
certain  to  be  tangible  grievances  as  well  as  a  denial  of 
liberty,  and  where  a  monarch,  or  an  oligarchy,  attempts 
to  deprive  a  people  of  the  freedom  they  have  enjoyed, 
they  conclude,  and  with  good  reason,  that  oppression 
is  sure  to  follow.  But  when  the  sources  of  insurrections 
are  examined,  it  will  be  almost  always  found  that  the 
great  bulk  of  the  insurgents  were  moved  either  by  the 
hatred  of  foreign  domination,  or  by  religious  passion,  or 
by  actual  wrongs  suffered.  Those  who  in  drawing  the 
sword  appeal  to  the  love  of  liberty  and  liberty  only  are 
usually  a  group  of  persons  who,  like  the  last  republicans 
of  Rome,  are  either  exceptional  in  their  sense  of  dignity 
and  their  attachment  to  tradition,  or  deem  the  predo- 
minance of  a  despot  injurious  to  their  own  position  in 
the  State.  So  we  may  safely  say  that  rebellions  and  revo- 
lutions are  primarily  made,  not  for  the  sake  of  freedom, 
but  in  order  to  get  rid  of  some  evil  which  touches  men 
in  a  more  tender  place  than  their  pride.  They  rise 


OBEDIENCE  483 

against  oppression  when  it  reaches  a  certain  point,  such 
as  the  spoiling  of  their  goods  by  the  tax-gatherer,  the 
invasion  of  their  homes  by  the  minions  of  tyranny,  the 
enforcement  of  an  odious  form  of  worship,  or  perhaps 
some  shocking  deed  of  cruelty  or  lust.  Once  they  have 
risen,  the  more  ardent  spirits  involve  the  sacred  name  of 
liberty  and  fight  under  its  banner.  But  so  long  as  the 
government  is  fairly  easy  and  tolerant,  the  mere  denial 
of  a  share  in  the  control  of  public  affairs  is  not  acutely 
resented,  and  a  great  deal  of  paternally  regulative  despo- 
tism is  acquiesced  in. 

In  A.D.  1863,  when  Bismarck  was  flouting  the  Prus- 
sian Parliament,  Englishmen  were  surprised  at  the  cool- 
ness with  which  the  Prussian  people  bore  the  violations 
of  their  not  too  liberal  constitution.  The  explanation 
was  that  the  country  was  well  governed,  and  the  struggle 
for  political  power  did  not  move  peasants  and  trades- 
men otherwise  contented  with  their  lot.  The  English 
were  a  people  singularly  attached  to  their  ancient  politi- 
cal and  civil  rights,  yet  Charles  the  First  might  probably 
have  destroyed  the  liberties  of  England,  and  would  al- 
most certainly  have  destroyed  those  of  Scotland,  if  he 
had  left  religion  alone.  One  of  the  few  cases  that  can  be 
cited  where  a  great  movement  sprang  from  the  pure  love 
of  independence  is  the  migration  of  the  chieftains  of 
Western  Norway  to  Iceland  in  the  ninth  century,  rather 
than  admit  the  overlordship  of  King  Harold  the  Fair- 
haired.  But  even  here  it  is  to  be  remembered  that  Ha- 
rold sought  to  levy  tribute:  and  the  Norsemen  were  of  all 
the  races  we  know  those  in  whom  the  pride  of  personal- 
ity and  the  spirit  of  independence  glowed  with  the  hot- 
test flame. 

There  are  even  times  when  peoples  that  have  enjoyed 
a  disordered  freedom  tire  of  it,  and  are  ready  to  wel- 
come, for  the  sake  of  order,  any  saviour  of  society  who 
appears,  an  Octavianus  Augustus  or  even  a  Louis  Na- 
poleon. The  greatest  peril  to  self-government  is  at  all 
times  to  be  found  in  the  want  of  zeal  and  energy  among 


484  OBEDIENCE 

the  citizens.  This  is  a  peril  which  exists  in  democracies 
as  well  as  in  despotisms.  Submission  is  less  frequently 
due  to  overwhelming  force  than  to  the  apathy  of  those 
who  find  acquiescence  easier  than  resistance. 

Two  questions  arising  out  of  the  view  that  has  been 
here  presented  regarding  the  main  sources  of  Obedience 
remain  to  be  considered. 

One  of  these,  that  which  bears  upon  the  theory  of 
jurisprudence  as  a  science,  being  somewhat  technical, 
had  better  not  be  suffered  to  interrupt  the  course  of  the 
general  argument.  I  have  therefore  relegated  it  to  a 
note  at  the  end  of  this  essay. 

III.    THE  FUTURE  OF  POLITICAL  OBEDIENCE. 

The  other  question  which  deserves  to  be  examined 
is  a  much  wider  one.  We  have  inquired  what  have 
been  the  grounds  of  Obedience  in  the  past,  and  how  it 
has  worked  in  consolidating  political  society.  We  have 
seen  that  political  society  has  depended  upon  the  natural 
inequality  in  the  strength  of  individual  wills  and  in  the 
activity  of  individual  intellects,  so  that  the  weaker  have 
tended  to  follow  and  shelter  themselves  behipd  the 
stronger,  not  so  much  because  the  stronger  have  com- 
pelled them  to  do  so  as  because  they  have  themselves 
wished  to  do  so.  But  the  conditions  of  human  life  and 
society  have  of  late  years  greatly  changed,  and  are  still 
continuing  to  change,  in  the  direction  of  securing  wider 
scope  for  independence  of  thought  and  action.  Society 
has  become  orderly,  and  physical  violence  plays  a  smaller 
and  a  steadily  decreasing  part.  The  multitude,  in  most 
of  the  civilized  and  progressive  countries,  can,  if  and 
when  it  pleases,  exercise  political  supremacy  through 
its  voting  power.  There  is  very  much  less  distinction 
of  ranks  than  formerly,  so  that  even  those  who  dislike 
social  equality  are  obliged  to  profess  their  love  for  it. 
And  the  opportunities  of  obtaining  knowledge  have  be- 
come infinitely  more  accessible  than  they  were  even  a 


OBEDIENCE  485 

century  ago.  Changes  so  great  as  these  must  surely — 
though  of  course  they  cannot  alter  the  fundamental  facts 
of  human  nature — modify  the  working  of  the  tendencies 
and  habits  which  man  shows  in  political  society.  How 
far,  then,  are  they  likely  to  modify  the  tendency  to  Obe- 
dience, and  in  what  way  ?  In  other  words,  What  will  be 
the  relation  of  Obedience  to  democracy  and  to  social 
equality  ? 

It  used  to  be  believed,  perhaps  it  is  still  generally  be- 
lieved, that  with  the  advance  of  knowledge,  the  develop- 
ment of  intelligence,  and  the  accumulation  of  human  ex- 
perience, Obedience  must  necessarily  decline,  and  that 
therewith  governmental  control  will  decay  or  be  deemed 
superfluous,  the  good  sense  of  mankind  coming  in  to  do 
for  themselves  what  authority  has  hitherto  done  for 
them.  The  familiar  phrase  '  Anarchy  plus  a  street  con- 
stable '  was  employed  to  describe  the  ideal  of  a  govern- 
ment restricted  to  the  fewest  possible  functions,  as  that 
ideal  was  cherished  by  the  lovers  of  liberty  and  the 
apostles  of  laisscz-fairc.  There  is  even  a  school  count- 
ing among  its  members,  besides  a  few  assassins,  many 
peaceful  and  tender-hearted  theorists,  men  of  high  per- 
sonal excellence,  which  maintains  that  all  the  troubles 
of  the  world  spring  from  the  effort  of  one  man,  or  a 
group  of  men,  or  the  general  mass  of  a  people,  to  regu- 
late the  relations  and  guide  the  conduct  of  individuals. 
To  this  school  all  forms  of  government  are  pretty  nearly 
equally  bad,  and  a  Czar,  though  a  more  conspicuous 
mark  for  denunciation,  is  scarcely  worse  than  is  a 
Parliament. 

The  answer  to  this  view,  which  is  attractive,  not  merely 
because  it  is  paradoxical,  but  because  it  is  a  protest 
against  some  really  bad  tendencies  of  human  society, 
and  whose  ideal,  however  unattainable,  offers  larger 
prospects  of  pleasure  than  does  that  of  the  ultra-regu- 
lators, seems  to  be  that  Obedience  is  an  instinct  of 
human  nature  too  strong  and  permanent  to  be  got  rid  of, 
and  that  the  extinction  of  the  State  machinery  which 


486  OBEDIENCE 

rules  by  this  instinct,  and  when  necessary  enforces  its 
own  authority  by  the  strong  arm,  would  not  really  secure 
freedom  to  the  weak  though  it  might  facilitate  oppres- 
sion by  the  strong.  To  assume  that  human  nature  will 
change  as  soon  as  provisions  for  State  compulsion  have 
been  withdrawn  is  to  misread  human  nature  as  we  have 
hitherto  known  it.  Organizations  there  will  be  and  must 
be,  even  if  existing  governments  come  to  an  end:  and 
every  organization  implies  obedience,  not  only  because 
large  enterprises  cannot  otherwise  be  worked,  but  also 
because  the  direction,  necessarily  committed  to  a  few, 
forms  in  those  few  the  habit  of  ruling  and  disposes 
others  to  accept  their  control.  The  decline  of  respect 
for  the  State,  or  even  the  growth  of  a  habit  of  disobe- 
dience to  State  authorities,  so  far  from  implying  a  de- 
cline in  the  motives  and  forces  which  produce  obedience 
generally,  may  indicate  nothing  more  than  that  people 
have  begun  to  obey  some  other  authorities,  and  so  il- 
lustrate our  proposition  that  the  obedience  rendered  to 
authorities  commanding  physical  force  is  not  always 
nor  necessarily  the  promptest  and  the  heartiest.  New 
forms  of  social  grouping  and  organization  are  always 
springing  up,  and  in  these,  if  they  are  to  strive  for  and 
attain  their  aims,  discipline  is  essential,  because  it  is 
only  thus  that  success  in  a  struggle  can  be  won.  To 
keep  men  tightly  knit  together  power  must  be  lodged 
in  few  hands,  and  the  rank  and  file  must  take  their  orders 
from  their  officers.  Such  submission,  due  at  starting 
partly  no  doubt  to  reason,  which  suggests  motives  of 
interest,  but  largely  also  to  deference  and  to  sympathy, 
with  fear  presently  added,  soon  crystallizes  into  a  habit. 
Any  one  who  will  watch  any  considerable  modern  move- 
ment or  series  of  movements  outside  the  State  sphere 
will  perceive  how  naturally  and  inevitably  guidance  falls 
into  a  few  hands,  and  how  largely  success  depends  on 
the  discipline  which  those  who  guide  maintain  among 
those  who  follow;  that  is  to  say,  on  the  uniformity  and 
readiness  of  obedience,  and  on  the  strength  of  the  asso- 


OBEDIENCE  487 

ciative  habit  which  makes  them  all  act  heartily  together. 
Whether  it  be  a  political  party,  or  an  ecclesiastical  move- 
ment, or  a  combination  of  employers  or  of  workmen,  the 
same  tendencies  appear,  and  victory  is  achieved  by  the 
same  methods. 

I  will  name  in  passing  three  very  recent  instances, 
drawn  from  the  country  in  which  it  might  be  supposed 
that  subordination  was  least  likely  to  be  found,  because 
the  principles  of  democracy  and  equality  have  had  in  it 
the  longest  and  the  fullest  vogue.  One  is  to  be  found 
in  the  Boss  system  in  American  politics.  Such  party 
chieftains  as  Mr.  Croker  in  New  York  City,  Mr.  Cox 
in  Cincinnati,  and  the  well-known  masters  of  the  Re- 
publican party  in  the  great  States  of  Pennsylvania  and 
New  York,  wield  a  power  far  more  absolute,  far  more 
unquestioned,  than  the  laws  of  the  United  States  permit 
to  any  official.  One  must  go  to  Russia  to  find  anything 
comparable  to  the  despotic  control  they  exert  over  fel- 
low citizens  who  are  supposed  to  enjoy  the  widest  free- 
dom the  world  has  known.  A  second  is  supplied  by  the 
American  trade  unions,  in  which  a  few  leaders  are  per- 
mitted by  the  mass  of  their  fellow  workmen  to  organize 
combinations  and  to  direct  strikes  as  practical  dictators. 
A  trade  union  is  a  militant  body,  and  the  conditions  of 
war  make  the  leader  all-powerful.  The  third  is  to  be 
found  in  the  American  Trusts  or  great  commercial  cor- 
porations, aggregations  of  capital  which  embrace  vast 
industries  and  departments  of  trade  employing  many 
thousands  of  work-people,  and  which  are  controlled  by 
a  very  small  number  of  capable  men.  Modern  com- 
merce, like  war,  suggests  the  concentration  of  virtually 
irresponsible  power  in  a  few  hands. 

Whether  we  examine  the  moral  constitution  of  man 
or  the  phenomena  of  society  in  its  various  stages,  we 
shall  be  led  to  conclude  that  the  theoretic  democratic 
ideal  of  men  as  each  of  them  possessing  and  exerting 
an  independent  reason,  conscience,  and  will,  is  an  ideal 
too  remote  from  human  nature  as  we  know  it,  and  from 


488  OBEDIENCE 

communities  as  they  now  exist,  to  be  within  the  horizon 
of  the  next  few  centuries,  perhaps  of  all  the  centuries 
that  may  elapse  before  we  are  covered  by  the  ice-fields 
again  descending  from  the  Pole  or  are  ultimately  en- 
gulfed in  the  sun. 

What,  then,  is  the  most  that  a  reasonable  optimist 
may  venture  to  hope  for  ?  He  will  hope  that  '  the 
masses  '  of  democratic  countries  in  the  future,  since  they, 
like  ourselves,  must  follow  a  small  number  of  leaders, 
will  ultimately  reach  a  level  of  intelligence,  public  spirit 
and  probity  which  will  enable  them  to  select  the  right 
leaders,  will  make  the  demagogue  repulsive,  will  secure 
their  deference  for  those  whose  characters  and  careers 
they  can  approve,  and  will  so  far  control  the  associative 
instinct  as  to  cause  their  adhesion  to  party  to  be  gov- 
erned by  a  moral  judgement  on  the  conduct  of  the  party. 
The  masses  cannot  have  either  the  leisure  or  the  capa- 
city for  investigating  the  underlying  principles  of  policy 
or  for  mastering  the  details  of  legislation.  Yet  they 
may — so  our  optimist  must  hope — attain  to  a  sound  per- 
ception of  the  main  and  broad  issues  of  national  and  in- 
ternational policy,  especially  in  their  moral  aspects,  a 
perception  sufficient  to  enable  them  to  keep  the  nation's 
action  upon  right  lines.  For  the  average  man  to  do 
more  than  this  seems  scarcely  more  possible  than  that 
he  should  examine  religious  truth  for  himself,  scrutiniz- 
ing the  Christian  evidences  and  reaching  independent 
conclusions  upon  the  Christian  dogmas.  This  is  what 
the  extreme  Protestant  theory,  which  exalted  human 
reason  in  the  religious  sphere  no  less  than  democratic 
theory  did  in  the  political  sphere,  has  demanded,  and 
indeed  must  demand,  from  the  average  man.  But  how 
many  Protestants  seek  to  rise  to  it?  Many  of  those 
who  grew  up  under  the  influence  of  that  inspiriting 
theory  can  recall  the  disappointment  with  which,  be- 
tween twenty  and  thirty  years  of  age,  they  came  to  per- 
ceive that  the  ideal  was  unattainable  for  themselves, 
and  that  they  must  be  content  to  form  and  live  by  such 


OBEDIENCE  489 

views  of  the  meaning  of  the  Bible  and  of  the  dogmas  held 
to  be  deducible  therefrom  as  a  reliance  on  the  opinions 
of  the  highest  critical  authorities  and  of  their  own  wisest 
friends,  coupled  with  their  own  limited  knowledge  of 
history  and  with  the  canons  of  evidence  which  they 
had  unconsciously  adopted,  enabled  them  to  form.  Even 
this,  however,  has  seemed  to  most  of  those  who  have 
passed  through  such  an  experience  to  be  better  than  a 
despairing  surrender  to  ecclesiastical  authority. 

So  the  optimist  aforesaid  may  argue  that  the  future 
for  which  he  hopes  will  represent,  not  indeed  the  ideal 
which  democracy  sets  up,  yet  nevertheless  an  advance 
upon  any  government  the  world  has  yet  seen,  except  per- 
haps in  very  small  communities  or  for  a  brief  space  of 
time. 

The  doctrine  that  the  natural  instinct  and  passion  of 
men  was  for  liberty,  because  every  human  being  was  a 
centre  of  independent  force,  striving  to  assert  itself; 
the  doctrine  that  political  freedom  would  bring  mental 
independence  and  a  sense  of  responsibility ;  that  educa- 
tion would  teach  men,  not  only  to  prize  their  political 
rights,  but  also  to  use  them  wisely — this  doctrine  was 
first  promulgated  by  persons  of  exceptional  vigour,  ex- 
ceptional independence,  exceptional  hopefulness.  These 
were  the  qualities  that  made  such  men  idealists  and  re- 
formers:  and  they  attributed  their  own  merits  to  the 
general  body  of  mankind.  It  was  an  admirable  ideal. 
Let  us  hold  to  it  as  long  as  we  can.  The  world  is  still 
young. 

Having  heard  the  optimist,  we  must  let  the  pessimist 
also  state  his  case.  If  he  is  a  reasonable  pessimist,  he 
will  admit  that  Obedience  may  be  expected  to  become 
more  and  more  a  product  of  reason  rather  than  of  mere 
indolence  or  timidity,  because  every  advance  in  popular 
enlightenment  or  in  the  participation  of  the  masses  in 
government  ought,  after  the  first  excitement  of  uncha- 
stened  hopes  or  destructive  impulses  has  passed  away, 
to  engender  a  stronger  feeling  of  the  common  interest 


490  OBEDIENCE 

in  public  order,  and  of  the  need  for  subordinating  the 
demands  of  a  class  to  the  general  good.  He  will  also 
admit  that  the  progress  of  social  equality  may  tend  to 
increase  each  man's  sense  of  individual  dignity.  But 
if  he  is  asked  to  admit  further  that  governments  will 
become  purer  and  better  because  there  will  come  along 
with  that  habit  of  rational  obedience  (a  habit  necessary 
to  enable  any  government  to  be  efficient)  a  stronger 
interest  in  self-government,  a  more  active  public  spirit,  a 
constant  sense  of  the  duty  which  each  citizen  owes  to 
the  community  to  secure  an  honest  and  wise  administra- 
tion, he  will  observe  that  as  we  have  seen  that  Obedience 
rests  primarily  upon  certain  instincts  and  habits  woven 
into  the  texture  of  human  nature,  these  instincts  and 
habits  will  be  permanent  factors,  not  necessarily  less 
potent  in  the  future  than  they  have  been  in  the  past. 
He  will  then  ask  whether  the  events  of  the  last  seventy 
years,  during  which  power  has,  at  least  in  form  and 
semblance,  passed  from  the  few  to  the  many,  encourage 
the  belief  that  the  spirit  of  independence,  the  standard 
of  public  duty,  and  the  sense  of  responsibility  in  each 
individual  for  the  conduct  of  government  are  really 
advancing. 

Are  the  omens  in  this  quarter  of  the  heavens  so 
favourable  as  we  are  apt  to  assume? 

There  is  less  love  of  liberty — so  our  pessimist  pursues 
—  than  there  used  to  be,  perhaps  less  value  set  upon  the 
right  of  a  man  to  express  unpopular  opinions.  There  is 
less  sympathy  in  each  country  for  the  struggles  which 
are  maintained  for  freedom  in  other  countries.  National 
antagonisms  are  as  strong  as  ever  they  were,  and  nations 
seem  quite  as  willing  as  in  the  old  days  of  tyranny  to 
forgo  domestic  progress  for  the  sake  of  strengthening 
their  militant  force  against  their  rivals.  There  is  less 
faith  in,  less  regard  for,  that  which  used  to  be  called  the 
principle  of  nationality.  Peoples  which  have  achieved 
their  own  national  freedom  show  no  more  disposition 
than  did  the  tyrants  of  old  time  to  respect  the  struggles 


OBEDIENCE  491 

of  other  peoples  to  maintain  theirs.  The  sympathy 
which  Germans  and  Frenchmen  used  to  feel  for  the  op- 
pressed races  of  the  East  has  disappeared.  France  has 
ceased  to  care  about  the  Cretans  or  the  Poles.  England, 
whose  heart  went  out  forty  years  ago  to  all  who  strove 
for  freedom  and  independence,  feels  no  compunction 
in  blotting  out  two  little  republics  whose  citizens  have 
fought  with  a  valour  and  constancy  never  surpassed. 
The  United  States  ignore  the  principles  of  their  Decla- 
ration of  Independence  when  they  proceed  to  subjugate 
by  force  the  Philippine  Islanders.  The  modern  ideal  is 
no  longer  liberty,  but  military  strength  and  commercial 
development. 

If  freedom  is  less  prized,  it  is  perhaps  because  free 
governments  have  failed  to  bear  the  fruit  that  was  ex- 
pected from  them  fifty  years  ago.  The  Republic  in 
France  seems,  after  thirty  years,  to  have  made  the  coun- 
try not  much  happier  or  more  contentedly  tranquil  than 
it  was  under  Louis  Napoleon  or  Louis  Philippe.  It 
maintains,  to  the  eyes  of  foreign  observers,  a  precarious 
life  from  year  to  year,  now  and  then  threatened  by  plots 
military,  political,  or  ecclesiastical.  A  free  and  united 
Italy  has  not  realized  the  hopes  of  the  great  men  to 
whom  she  owes  her  unity  and  her  freedom.  The  United 
States  have  at  least  as  much  corruption  in  their  legisla- 
tures, and  worse  government  in  their  great  cities,  with 
fewer  men  of  commanding  ability  in  their  public  life, 
than  before  the  Civil  War,  when  it  was  believed 
that  all  evils  would  disappear  with  the  extinction  of 
slavery.  In  particular,  representative  government,  in 
which  the  hopes  of  the  apostles  of  progress  were  centred 
half  a  century  ago,  has  fallen  into  discredit.  In  some 
countries  the  representative  is  more  timid,  more  willing 
to  be  turned  into  a  mere  delegate,  more  at  the  mercy  of 
a  party  organization,  than  he  was  formerly.  In  others 
the  popular  assembly  is  so  much  distrusted  that  men 
seek  to  override  it  by  introducing  a  so-called  plebiscite 
or  referendum  to  review  its  decisions. 


492  OBEDIENCE 

No  result  was  more  confidently  expected  from  the 
enlightenment  of  the  bulk  of  the  people  than  the  triumph, 
a  speedy  and  complete  triumph,  of  sound  economic  doc- 
trines, such  as  those  which  prescribe  the  adoption  of 
Free  Trade  in  commercial  legislation  and  reliance  upon 
self-help  rather  than  State-help  in  poor  law  matters  and 
generally  in  social  improvements.  But  the  United  King- 
dom is  the  only  country  in  which  Free  Trade  holds  the 
field,  and  in  the  United  Kingdom  the  true  and  whole- 
some principles  of  poor  law  administration,  as  set  forth 
by  Chalmers  and  by  the  famous  Commissioners  of  1834, 
have  rather  lost  than  gained  ground. 

The  doctrines  of  Laissez-Fairc  and  Individualism  have 
suffered  an  eclipse.  The  State  interferes  more  and  more 
with  the  power  of  the  individual  to  do  as  he  pleases.  Its 
motives  are  usually  excellent,  but  the  result  is  to  subject 
his  life  to  a  closer  and  more  repressive  supervision.  This 
means  more  obedience,  less  exercise  of  personal  dis- 
cretion, less  of  that  virtue  which  guides  the  self-deter- 
mining will  to  choose  the  good  and  reject  the  evil.  '  If 
every  action/  says  John  Milton,  '  which  is  good  or  evil 
in  man  at  ripe  years  were  to  be  under  pittance,  prescrip- 
tion and  compulsion,  what  were  virtue  but  a  name — 
what  praise  could  be  then  due  to  well-doing,  what  gra- 
mercy  to  be  sober,  just  or  continent?  ' 

Nor  is  it  only  the  State  (whether  through  central  or 
through  local  authorities)  that  threatens  individual  free- 
dom. Masses  of  working  men  surrender  themselves  to 
the  control  of  the  few  chiefs  of  their  trade  organization, 
who  are  hardly  the  less  despotic  in  fact  because  they  are 
elected  and  because  they  are  nominally  subject  to  a  con- 
trol which  those  who  have  elected  them  cannot,  from 
the  nature  of  the  case,  effectively  exert 1.  Thus  there  is, 


1  This  pessimist  omits  to  notice  that  interference  by  the  State  or  by  such  quasi- 
despotic  combinations  of  workmen  may  have  been  deemed  the  only  means  of  escap- 
ing from  submission  to  organizations  of  capitalists  capable  of  exercising  a  tyranny 
through  the  forms  of  the  law.  He  would  however  reply  that  this  fact  did  not  tell 
against  his  thesis  that,  one  way  or  another,  people  are  not  becoming  more  fully 
masters  of  their  own  lives  and  fates. 


OBEDIENCE  493 

instead  of  more  independence,  always  more  and  more 
obedience. 

To  one  who  believes  the  principles  of  Free  Trade  and 
Self-Help  to  be  irrefragably  true  this  means  that  the 
bulk  of  the  people  are  not,  as  was  formerly  expected, 
thinking  for  themselves,  perhaps  are  not  capable  of 
thinking  for  themselves,  while  those  persons  who  are 
capable  fear  to  contend  for  doctrines  which  happen  to  be 
unpopular  because  opposed  to  ignorant  or  superficial 
views  of  what  is  the  interest  of  a  nation  or  of  the  most 
numerous  class  in  the  nation. 

In  the  enlightenment  of  the  people,  which  was  to  in- 
crease their  independence  of  spirit  and  their  zeal  for 
good  government,  the  chief  part  was  to  be  played  by 
the  public  press.  Its  influence  has  increased  beyond  the 
most  sanguine  anticipations  of  the  last  generation  of  re- 
formers whether  in  Great  Britain  or  in  Continental  Eu- 
rope. It  employs  an  enormous  amount  of  literary  talent. 
Nothing  escapes  its  notice.  But  in  some  countries  it 
has  become  a  powerful  agent  for  blackmailing ;  in  others 
it  is  largely  the  tool  of  financial  speculators ;  in  others, 
again,  it  degrades  politics  by  vulgarizing  them,  or  seeks 
to  increase  its  circulation  by  stimulating  the  passion  of 
the  moment.  Pecuniary  considerations  cannot  but  affect 
it,  because  a  newspaper  is  a  commercial  concern,  whose 
primary  aim  is  to  make  a  profit.  Almost  everywhere  it 
tends  to  embitter  racial  animosities  and  make  more  diffi- 
cult the  preservation  of  international  peace.  When  it 
tells  each  man  that  the  views  it  expresses  are  those  of 
everybody  else,  except  a  few  contemptible  opponents,  it 
increases  the  tendency  of  each  man  to  fall  in  with  the 
views  of  the  mass,  and  confirms  that  habit  of  passive 
acquiescence  which  the  progress  of  enlightenment  was 
once  expected  to  dispel. 

The  growth  in  population  of  the  great  industrial  na- 
tions, such  as  Germany,  England,  and  the  United  States, 
may  tend  to  dwarf  the  sense  in  each  man  of  his  own 
significance  to  the  whole  body  politic,  and  dispose  him 


494  OBEDIENCE 

to  make  less  strenuous  efforts  than  he  would  have  put 
forth  had  he  thought  his  own  exertions  more  likely  to 
tell  upon  the  community.  The  vaster  the  people  the 
more  trivial  must  the  individual  appear  to  himself,  and 
the  more  readily  will  he  fall  in  with  what  the  majority 
think  or  determine. 

The  rise  of  wages  among  the  poorer  classes  and  the 
bettering  of  material  conditions  in  all  classes  were  ex- 
pected to  give  the  bulk  of  the  people  more  leisure,  and 
it  was  assumed  that  this  would  induce  them  to  bestow 
more  attention  upon  public  affairs  and  so  stimulate 
them  in  the  discharge  of  civic  duties.  Wages  have  risen 
everywhere,  notably  in  England  and  the  United  States, 
and  material  conditions  have  improved.  But  new  in- 
terests have  therewith  been  awakened,  and  pleasures 
formerly  unattainable  have  been  brought  within  the 
reach  of  every  class  except  the  very  poorest.  Whatever 
other  benefits  this  change  brings,  it  has  not  tended  to 
make  civic  duty  more  prominent  in  the  mind  of  the 
average  man.  With  some,  material  enjoyments,  with 
others  physical  exercise,  or  what  is  called  sport  (includ- 
ing the  gambling  that  accompanies  many  kinds  of  sport), 
with  others  the  more  refined  pleasures  of  art  or  litera- 
ture, have  come  in  to  occupy  the  greatest  part  of  such 
time  and  thought  as  can  be  spared  from  daily  work;  and 
public  affairs  receive  no  more,,  perhaps  even  less,  of 
their  attention  than  was  formerly  given. 

May  it  not  even  be  that  material  comfort  and  the  sur- 
render of  one's  self  to  enjoyment,  whether  directed 
towards  the  coarser  or  towards  the  worthier  pleasures, 
tend  in  softening  the  character,  to  relax  its  tension,  or  at 
least  to  indispose  it  to  rough  work?  To  a  fine  taste 
things  in  which  taste  cannot  be  indulged  become  dis- 
tasteful. Thus  high  civilization  may  end  by  increasing 
the  sum  of  human  indolence,  at  least  so  far  as  politics 
are  concerned,  and  indolence  is,  after  all,  the  prime 
source  of  Obedience.  Some  things  no  doubt  men  will 
continue  to  value  and  (if  need  be)  to  defend,  because 


OBEDIENCE  495 

they  will  have  come  to  deem  them  essential.  Freedom 
of  Thought  and  Speech  is  probably  one  of  these  things, 
though  the  multitude  occasionally  shows  how  intolerant 
it  can  be  when  excited.  Civil  Equality  is  another;  the 
respect  for  private  civil  rights,  with  a  tolerably  fair  ad- 
ministration of  justice  for  enforcing  those  rights,  is  a 
third.  These  have  rooted  themselves  in  Germany  and 
England,  for  instance,  and  (with  some  few  local  excep- 
tions) in  the  United  States,  as  necessaries  to  existence. 
But  can  the  same  thing  be  said  of  political  freedom,  that 
is,  of  the  right  to  control,  by  constitutional  machinery, 
the  government  of  the  State  ?  Is  it  not  possible  that  the 
disposition  to  acquiesce  and  submit  without  the  applica- 
tion of  compulsive  force  may  be  as  strong  under  these 
new  conditions  as  it  ever  was  before?  possible  that  an 
educated  and  intelligent  people  might,  if  material  com- 
fort and  scope  for  intellectual  development  were  secured, 
grow  weary  of  political  contention,  and  submit  to  the 
despotism,  perhaps  of  a  regular  monarch,  perhaps  of  a 
succession  of  adventurers,  which,  tempered  in  some  de- 
gree by  public  opinion,  should  secure  peace,  order  and 
commercial  prosperity?  The  thing  has  happened  be- 
fore. For  five  centuries  the  people  who  had  been  the 
most  politically  active  and  who  remained  the  most  in- 
telligent and  most  civilized  in  the  world  made  no  effort 
to  recover  the  political  freedom  they  had  lost,  having 
indeed,  within  a  generation  or  two,  ceased  even  to  think 
of  it. 

So  far  our  pessimist.  He  has  obviously  omitted,  not 
only  some  facts  which  make  against  the  gloom  of  his 
picture,  but  also  other  facts  incidental  to  the  phenomena 
on  which  he  dwells,  which  qualify  their  import  or  indi- 
cate that  they  may  be  merely  transient.  The  most  seri- 
ous part  of  the  case  which  he  endeavours  to  make  against 
the  old  theory  that  democratic  government  fosters  the 
attachment  to  freedom,  stimulates  civic  zeal,  and  intensi- 
fies the  independent  spirit  of  the  citizen,  is  the  suggestion 
that  the  vast  size  of  modern  nations,  and  the  insignifi- 


496  OBEDIENCE 

cance  of  the  individual  man  as  compared  to  the  multitude 
around  him,  tend  to  dwarf  his  personal  sense  of  respon- 
sibility and  to  depress  his  hopes  of  withstanding  what- 
ever sentiment  or  opinion  may  be  for  the  time  predomi- 
nant. The  rule  of  the  majority,  if  it  induces  the  belief 
that  the  majority  must  be  right,  or  at  any  rate  that  the 
majority  is  irresistible1,  brings  back  the  old  dangers  of 
submission.  So  the  familiar  tendency  to  follow  and  obey, 
rather  than  to  think  and  act  for  one's  self,  may  be  even 
stronger  in  a  democracy  than  it  was  under  the  monar- 
chies of  earlier  days. 

If,  now  that  both  sides  have  been  heard,  we  are  to 
attempt  to  answer  the  question  propounded  some  pages 
back,  our  answer  must  be  that  despite  the  changes  which 
have  passed  upon  the  modern  world,  the  tendencies  of 
human  nature  which  make  for  obedience  have  not  be- 
come, and  are  not  likely  to  become,  less  powerful  than 
they  were.  That  they  should  disappear  is  not  to  be  de- 
sired, for  they  are  useful  tendencies,  without  which  so- 
ciety would  not  hold  together.  But  they  have  not  been 
reduced  even  so  far  as  the  reasonable  friends  of  progress 
might  wish.  In  the  sphere  of  religion  the  compulsion 
once  exercised,  not  merely  by  force,  but  also  by  public 
opinion,  has  doubtless  in  most  countries  declined.  There 
is  also  a  larger  and  freer  play  of  thought  and  taste  in  all 
matters  not  appertaining  to  collective  action,  that  is  to 
say,  in  matters  involving  no  collision  of  wills.  But  where 
this  collision  arises,  as  in  the  spheres  of  politics  and  in- 
dustry, the  disposition  of  the  average  man  to  defer  and 
fall  into  line,  the  tendency  of  the  stronger  will  to  prevail 
because  it  is  the  stronger,  are  as  great  as  ever  they  were 
before.  Physical  force  plays  a  smaller  part  than  it  did 
in  the  ruder  ages.  But  Indolence,  Deference,  and  Sym- 
pathy, rather  than  Reason  and  the  pride  of  personal  inde- 
pendence, have  filled  the  void  which  the  less  frequent 
appeal  to  physical  force  has  left. 

1  Some  remarks  upon  this  feature  of  the  United  States  may  be  found  in  the  au- 
thor's A  merican  Commonwealth,  vol.  ii.  chap.  Ixxxv,  4  The  Fatalism  of  the 
Multitude.' 


(i  in:  nn:  \  r/;  497 

So  far  as  the  question  touches  England,  it  may  be  that 
the  friends  of  progress  and  freedom  of  the  last  genera- 
tion, the  generation  of  Mazzini  and  Garrison  and  Cobden 
and  Gladstone,  assume  too  hastily  that  the  reforming 
ardour  and  other  civic  virtues  which  had  been  evoked 
by  the  long  battle  of  Englishmen  against  monarchy  and 
oligarchy  and  class  legislation  would  remain  unabated, 
after  the  battle  had  been  won,  in  days  which  see  popular 
self-government  an  ordinary  part  of  daily  life.  When 
the  grosser  abuses  in  administration  have  been  removed, 
when  everybody's  rights  have  been  recognized,  when 
new  questions,  far  more  intricate  and  difficult,  but  less 
exciting,  have  arisen,  when  it  is  not  destruction — a  thing 
everybody  can  clamour  for — but  constructive  legisla- 
tion that  is  needed,  public  interest  may  flag  and  politics 
cease  to  stir  emotion  as  they  formerly  did.  Just  as  in 
Italy  the  struggle  for  national  unity  and  freedom  called 
to  the  front  in  the  first  half  of  the  nineteenth  century 
a  brilliant  and  lofty  group  of  men,  who  have  left  few  suc- 
cessors, so  it  may  be  that  the  normal  attitude  of  a  people 
towards  its  public  life,  and  the  normal  attraction  which 
public  life  has  for  fine  characters  and  high  talents,  will 
fall  short  of  that  which  has  marked  the  periods  of  con- 
flict over  great  principles.  The  standard  will  not  there- 
fore, even  should  it  now  be  sinking,  rest  at  a  point  lower 
than  that  at  which  average  humanity  has  stood  through 
past  ages,  though  it  will  be  lower  than  that  to  which  ex- 
ceptional needs,  rousing  strong  emotions  and  inspiring 
golden  hopes,  had  uplifted  men  during  the  days  of 
conflict. 

There  is,  however,  a  further  reply  to  be  made  to  our 
pessimist  before  we  part  from  him.  Even  supposing 
that  the  ideals  which  democratic  theory  sets  up  have  not 
advanced  towards  realization,  that  the  love  of  freedom 
and  justice  has  declined,  and  that  the  tendency  to  indif- 
ference, to  acquiescence  in  a  dominant  opinion,  or  to 
unthinking  adherence  to  some  organization,  is  stronger 
than  was  expected  some  forty  years  ago,  these  may  be 


498  OBEDIENCE 

only  transitory  phenomena.  In  a  striking  passage  of  his 
Constitutional  History  of  England  (vol.  ii,  chapter  17), 
Bishop  Stubbs  comments  on  the  moral  and  political  de- 
cline of  the  men  of  the  fourteenth  century  from  the  level 
of  the  thirteenth,  but  observes  that  unseen  causes  were 
already  at  work  which  after  no  long  interval  restored 
the  tone  and  spirit  of  England.  It  has  often  been  so  in 
history,  though  no  generation  can  foretell  how  long  a 
period  of  intellectual  or  moral  depression  will  endure. 


NOTE  TO  THE  ABOVE  ESSAY 

ON  THE  APPLICATION  OF  THE  THEORY  OF  OBEDIENCE 
TO  THE  FUNDAMENTAL  DEFINITIONS  OF  JURISPRU- 
DENCE. 

THE  school  of  jurisprudence  which  follows  Bentham 
defines  a  Law  as  a  Command  of  the  State,  represents 
every  law  as  resting  solely  upon  the  physical  force  of 
the  State,  through  the  threat  of  punishment  to  those 
who  transgress  the  law,  and  finds  in  the  fear  of  punish- 
ment the  sole  motive  of  the  obedience  rendered  by  the 
citizens. 

There  are  three  objections  to  this  doctrine  and  defini- 
tion. The  first  is  that  if  it  is  meant,  as  the  generality 
of  language  used  by  its  propounders  implies,  to  apply 
to  all  political  communities,  it  is  untrue  as  matter  of 
history,  because  it  suggests  a  false  view  of  the  origin  of 
law,  and  is  inapplicable  to  the  laws  of  many  commu- 
nities. There  have  been  peoples  among  whom  there  was 
a  law  but  no  State  capable  of  enforcing  obedience.  In 
all  communities  there  have  been  laws  which  were  in  fact 
obeyed,  but  which  were  not  deemed  by  the  people  to 
have  emanated  from  the  State.  The  great  bulk  of  the 
rules  which  determine  the  relations  of  individuals  or 
groups  to  one  another  have  in  most  countries,  until 
comparatively  recent  times,  rested  upon  Custom — that 
is  to  say,  upon  long-settled  practice  which  everybody 
understands  and  in  which  everybody  acquiesces.  In 
such  countries  customs  were  or  are  laws,  and  do  not 
need  to  be  formally  enounced  in  order  to  secure  their 
observance  by  the  people.  Custom  is  simply  the  result 


500  OBEDIENCE 

of  the  disposition  to  do  again  what  has  been  done  be- 
fore. What  Habit  is  to  the  individual,  Custom  is  to  the 
community. 

The  second  objection  is  that,  even  in  mature  States 
where  there  exist  public  authorities  regularly  exercising 
legislative  functions,  most  laws  do  not  belong  in  their 
form  or  their  meaning  to  the  category  of  commands. 
In  order  to  make  them  seem  commands  a  forced  and 
unnatural  sense  must  be  put  upon  them,  by  representing 
the  State  as  directly  ordering  everything  to  which  it  is 
prepared  to  give  effect.  Statute  law  takes  the  form  of 
a  command  more  often  than  does  any  other  kind  of  law. 
Yet  even  in  English  statute  law  administrative  statutes, 
which  now  constitute  a  large  part  of  that  law,  are  usually 
couched  in  the  form,  not  of  an  order  to  a  public  body 
or  an  official  to  do  such  and  such  a  thing,  but  of  an 
authorization  which  makes  action  legal  which  might 
otherwise  have  been  illegal.  This  distinction,  though 
somewhat  technical,  nevertheless  indicates  the  unsuit- 
ability  of  the  definition.  As  for  that  part  of  the  law  of 
a  country  which  determines  the  private  rights  of  the 
citizens  towards  one  another,  as  for  instance  the  condi- 
tions attaching  to  commercial  and  other  contracts,  their 
interpretation,  the  liability  they  create,  or,  again,  the 
rights  of  succession  to  property,  and  the  modes  of  deal- 
ing with  heirship  or  bequests — this  largest  and  most 
important  part  of  the  law  does  not  consist  of  commands. 
The  rules  of  which  it  consists  are  declarations  of  the 
doctrines  which  the  Courts  have  applied  and  will  apply ; 
or  they  are,  if  you  like,  assurances  given  by  the  State 
that  it  will,  with  physical  force  at  its  disposal,  take  a 
certain  course  in  certain  events,  and  thus  they  become 
instructions  helpful  to  the  citizens,  showing  them  how 
they  may  get  the  law,  and  physical  force,  on  their  side 
in  civil  disputes.  But  they  are  not,  in  any  natural  sense 
of  the  word,  Commands.  This  is  obvious  enough  in 
English  law,  where  most  of  such  rules  are  to  be  gathered 
from  the  reports  of  decided  cases :  but  the  same  thing 


OBEDIENCE  501 

is  substantially  true  of  those  countries  which  have  em- 
bodied in  statutory  form  their  rules  upon  these  matters. 
The  point  is  not  merely  one  of  form  or  phrase,  though 
it  may  at  first  sight  seem  to  be  so.  It  goes  deeper;  it 
carries  one  back  to  the  origin  of  these  laws,  and  bears 
upon  their  inherent  nature.  In  fact  the  only  branch  of 
law  which  is  properly  covered  by  the  definition  I  am 
examining  is  Penal  or  Criminal  (with  certain  parts  of 
administrative)  law,  for  this  branch  does  consist  of 
express  orders  or  prohibitions  accompanied  by  threats 
of  punishment.  It  may  be  conjectured  that  the  Ben- 
thamites took  their  notion  of  law  in  general  from  this 
particular  department  of  it,  or  perhaps  from  the  Ten 
Commandments  in  the  Book  of  Exodus,  which,  though 
no  doubt  good  examples  of  the  categorical  imperative, 
are  anything  but  typical  of  law  in  general. 

If  the  Benthamites  had  been  content  to  distinguish 
rules  which  the  State  enforces  from  courses  of  conduct 
which  opinion  supports,  the  distinction,  though  an  older 
and  more  obvious  one  than  they  supposed,  would  have 
its  worth.  The  definition  of  a  law  as  that  which  the 
State  is  prepared  to  enforce  fits  a  modern  State,  though 
not  universally  applicable  to  early  communities.  But 
the  Benthamite  definition  goes  further,  and  may  be  mis- 
leading even  as  regards  modern  laws  generally. 

The  third  objection  to  this  definition  is  that  it  is  not 
primarily  or  chiefly  Fear  which  is  the  source  of  Obe- 
dience. It  is  not  Physical  Force  that  has  created  the 
State  whence  (according  to  this  doctrine)  laws  issue  and 
by  which  they  are  applied.  It  is  not  through  Force  that 
kings  reign  and  princes  decree  justice.  According  to 
the  Hebrew  Scriptures  it  is  by  God  that  they  reign. 
According  to  Homer  it  is  Zeus  who  has  given  to  the 
king  the  sceptre  and  the  dooms,  that  therewith  he  may 
rule.  Both  expressions  convey  the  same  truth,  that  it 
is  by  the  natural  or  providential  order  of  things,  and  in 
virtue  of  the  constitution  of  man  as  a  social  being,  that 
men  are  grouped  into  communities  under  leaders  who 


502  OBEDIENCE 

judge  among  them.  The  tendency  to  aggregation,  to 
imitation,  to  compliance  and  submission,  is  the  basis  on 
which  the  State  is  built.  It  is  of  course  not  only  true 
but  obvious  that  the  State  must  have  physical  strength 
at  its  disposal  in  order  to  make  the  law  obeyed.  The 
capacity  for  applying  compulsion  holds  the  State  to- 
gether. But  why  is  it  that  the  State  is  able  to  apply 
force?  Because,  in  the  ordered  and  normal  State,  the 
same  influences  which  have  drawn  men  together  keep 
them  together,  and  make  them  willingly  yield  to  the 
State  the  physical  strength,  and  the  money  which  pur- 
chases physical  strength,  needful  for  its  purposes. 
Where  a  ruler  rules  by  pure  force  (apart  from  the  con- 
sent of  the  community),  he  is  what  the  Greeks  called 
a  Tyrant,  or  the  Italians  in  the  fourteenth  century  a 
Signore,  a  Usurper  reigning  in  defiance  of  law  by  means 
of  armed  men,  an  Adventurer  who  has  risen  by  a  revolu- 
tion, is  supported  by  the  soldiery,  and  will  fall  when  they 
turn  against  him.  Such  Tyrants  are  represented  in  our 
own  day  by  the  Presidents  in  some  of  the  Spanish  Re- 
publics of  Central  and  South  America.  Pure  Force  is 
really  the  most  unstable  foundation  on  which  either  the 
State  or  Law  can  rest. 

Thus  the  same  conclusion  to  which  history  leads  is 
also  enjoined  on  us  by  a  consideration  of  the  psycho- 
logical or  sociological  grounds  which  induce  obedience, 
and  the  Benthamic  definition  is  perceived  to  be  unsound. 
These  curt  and  often  sweeping  definitions  usually  are 
unsound.  They  are  not  simple,  although  they  are  sum- 
mary. They  are  arbitrary  and  artificial,  concealing  under 
few  words  many  fallacies.  Human  nature  and  human 
society  are  too  complex  to  be  thus  dealt  with. 


X 

THE  NATURE  OF  SOVEREIGNTY 

I.   PRELIMINARY. 

As  the  borderland  between  two  kingdoms  used  in  un- 
settled states  of  society  to  be  the  region  where  disorder 
and  confusion  most  prevailed,  and  in  which  turbulent 
men  found  a  refuge  from  justice,  so  fallacies  and  con- 
fusions of  thought  and  language  have  most  frequently 
survived  and  longest  escaped  detection  in  those  terri- 
tories where  the  limits  of  conterminous  sciences  or 
branches  of  learning  have  not  been  exactly  drawn.  The 
frontier  districts,  if  one  may  call  them  so,  of  Ethics,  of 
Law,  and  of  Political  Science  have  been  thus  infested  by 
a  number  of  vague  or  ambiguous  terms  which  have  pro- 
voked many  barren  discussions  and  caused  much  need- 
less trouble  to  students.  The  words  which  serve  as 
technical  expressions  in  adjacent  departments  of  know- 
ledge are  sometimes  employed  in  slightly  different  senses 
in  those  different  departments ;  and  neither  in  Ethics 
nor  in  Politics  has  a  well-defined  terminology  become 
accepted.  It  is  only  of  late  years,  when  philosophy  in 
becoming  less  creative  has  become  more  critical,  that 
there  has  been  established  on  the  confines  of  these  three 
sciences  a  comparatively  vigilant  police,  which  is  compe- 
tent, at  least  in  the  realm  of  law,  to  arrest  suspicious 
phrases  and  propositions,  and  subject  them  to  a  rigorous 
examination. 

No  offender  of  this  kind  has  given  more  trouble  than 


504  THE  NATURE  OF  SOVEREIGNTY 

the  so-called  '  Doctrine  of  Sovereignty/  The  contro- 
versies which  it  has  provoked  have  been  so  numerous 
and  so  tedious  that  a  reader — even  the  most  patient 
reader — may  feel  alarmed  at  being  invited  to  enter  once 
again  that  dusty  desert  of  abstractions  through  which 
successive  generations  of  political  philosophers  have 
thought  it  necessary  to  lead  their  disciples.  Let  me 
therefore  hasten  to  say  that  my  aim  is  to  avoid  that 
desert  altogether,  and  approach  the  question  from  the 
concrete  side.  Instead  of  attempting  to  set  forth  and 
analyse  the  doctrines  of  the  great  publicists  of  the  six- 
teenth and  seventeenth  centuries — Bodin,  Althaus,  Gro- 
tius,  Hobbes,  and  the  rest — or  the  dogmas  delivered  by 
Bentham  and  Austin,  who  represent  the  school  that  has 
had  most  influence  during  the  last  seventy  years  in  Eng- 
land, I  will  assume  the  views  of  these  and  similar  writers 
to  be  sufficiently  known,  and  will  reserve  criticisms  upon 
them  till  we  have  seen  whether  there  may  not  be  found 
a  conception  and  definition  of  the  thing  more  plain, 
simple,  and  conformable  to  the  facts,  than  could  well 
have  been  reached  by  those  who,  living  in  the  midst  of 
acute  political  controversies,  were  really  occupied  in 
solving  problems  which  belonged  to  their  own  time,  and 
which  now,  under  changed  conditions,  seem  capable  of 
receiving  an  easier  solution.  If  we  succeed  in  finding 
such  a  conception,  we  may  return  to  inquire  why  the 
modern  successors  of  Hobbes,  who  had  not  the  same 
need  for  a  theory  as  he  had,  worried  themselves  over 
what  was  really  a  question  rather  of  words  than  of 
substance. 

It  is  well  to  begin  by  distinguishing  the  senses  in 
which  the  word  Sovereignty  is  used.  In  the  ordinary 
popular  sense  it  means  Supremacy,  the  right  to  demand 
obedience.  Although  the  idea  of  actual  power  is  not 
absent,  the  prominent  idea  is  that  of  some  sort  of  title 
to  exercise  control.  An  ordinary  layman  would  call 
that  person  (or  body  of  persons)  Sovereign  in  a  State 
who  is  obeyed  because  he  is  acknowledged  to  stand  at 


THE  NATURE  OF  SOVEREIGNTY  505 

the  top,  whose  will  must  be  expected  to  prevail,  who 
can  get  his  own  way,  and  make  others  go  his,  because 
such  is  the  practice  of  the  country.  Etymologically  the 
word  of  course  means  merely  superiority1,  and  familiar 
usage  applies  it  in  monarchies  to  the  monarch,  because 
he  stands  first  in  the  State,  be  his  real  power  great  or 
small. 

II.    LEGAL  SOVEREIGNTY  (De  lure). 

For  the  purposes  of  the  lawyer  a  more  definite  con- 
ception is  required.  The  sovereign  authority  is  to  him 
the  person  (or  body)  to  whose  directions  the  law  attri- 
butes legal  force,  the  person  in  whom  resides  as  of  right 
the  ultimate  power  either  of  laying  down  general  rules 
or  of  issuing  isolated  rules  or  commands,  whose  au- 
thority is  that  of  the  law  itself.  It  is  in  this  sense,  and  in 
this  sense  only,  that  the  jurist  is  concerned  with  the 
question  who  is  sovereign  in  a  given  community.  In 
every  normal  modern  State  there  exist  many  rules  pur- 
porting to  bind  the  citizen,  and  many  public  officers  who 
are  entitled,  each  in  his  proper  sphere,  to  do  certain  acts 
or  issue  certain  directions.  Who  has  the  right  to  make 
the  rules?  Who  has  the  right  to  appoint  and  assign 
functions  to  the  officers  ?  The  person  or  body  to  whom 
in  the  last  resort  the  law  attributes  this  right  is  the 
legally  supreme  power,  or  Sovereign,  in  the  State. 
There  may  be  intermediate  authorities  exercising  dele- 
gated powers.  Legal  sovereignty  evidently  cannot  re- 
side in  them ;  the  search  for  it  must  be  continued  till  the 
highest  and  ultimate  source  of  law  has  been  reached. 

A  householder  in  a  municipality  is  asked  to  pay  a 
paving  rate.  He  inquires  why  he  should  pay  it,  and  is 
referred  to  the  resolution  of  the  Town  Council  im- 
posing it.  He  then  asks  what  authority  the  Council  has 

1  The  heads  of  monasteries  seem  to  have  been  sometimes  familiarly  described 
as  Sovereigns  in  the  Middle  Ages.  The  name  Sovereign  was  down  till  very  recent 
times  used  to  describe  the  head  of  a  municipality  in  several  Irish  boroughs.  Proba- 
bly other  similar  instances  might  be  collected. 


506  THE  NATURE  OF  SOVEREIGNTY 

to  levy  the  rate,  and  is  referred  to  a  section  of  the  Act 
of  Parliament  whence  the  Council  derives  its  powers. 
If  he  pushes  curiosity  further,  and  inquires  what  right 
Parliament  has  to  confer  these  powers,  the  rate  col- 
lector can  only  answer  that  everybody  knows  that  in 
England  Parliament  makes  the  law,  and  that  by  the  law 
no  other  authority  can  override  or  in  any  wise  interfere 
with  any  expression  of  the  will  of  Parliament.  Parlia- 
ment is  supreme  above  all  other  authorities,  or  in  other 
words,  Parliament  is  Sovereign. 

The  process  of  discovering  the  Sovereign  is  in  all 
normal  modern  States  essentially  the  same.  In  an  auto- 
cracy like  that  of  Russia  it  is  generally  very  short  and 
simple,  since  all  laws  (except  customs  having  legal  force) 
and  executive  orders  emanate  directly  or  indirectly  from 
the  Czar,  and  by  the  law  the  Czar  is  the  sole  legislative 
authority.  Both  these  cases  are  simple  and  easy,  be- 
cause we  speedily  reach  one  Person,  as  in  Russia,  or 
one  body  of  persons,  as  in  Britain,  to  whom  the  law  at- 
tributes Sovereignty.  But  there  are  cases  which  present 
more  difficulty,  though  the  principles  to  be  applied  are 
the  same. 

In  a  country  governed  by  a  Rigid  Constitution  which 
limits  the  power  of  the  legislature  to  certain  subjects, 
or  forbids  it  to  transgress  certain  fundamental  doctrines, 
the  Sovereignty  of  the  legislature  is  to  that  extent  re- 
stricted. Within  the  sphere  left  open  to  it,  it  is  supreme, 
while  matters  lying  outside  its  sphere  can  be  dealt  with 
only  by  the  authority  (whether  a  Person  or  a  Body) 
which  made  and  can  amend  the  Constitution.  So  far  as 
regards  those  matters,  therefore,  ultimate  Sovereignty 
remains  with  the  authority  aforesaid,  and  we  may  there- 
fore say  that  in  such  a  country  legal  Sovereignty  is  di- 
vided between  two  authorities,  one  (the  Legislature)  in 
constant,  the  other  only  in  occasional  action. 

Another  class  of  cases  arises  in  a  Federal  State,  where 
the  powers  of  government  are  divided  between  the  Cen- 
tral and  the  Local  Legislatures,  each  having  a  sphere  of 


THE  NATURE  OF  SOVEREIGNTY  507 

its  own  determined  by  the  constitution  of  the  federa- 
tion. In  such  a  State  the  power  of  making  laws  belongs 
for  some  purposes  to  the  Central,  for  some  to  the  Local 
Legislatures.  Thus  in  the  United  States,  while  Congress 
is  everywhere  the  supreme  legislative  power  for  some 
subjects,  the  tariff,  for  instance,  or  copyright,  or  inter- 
state commerce,  the  legislature  of  each  State  is  within 
that  State  supreme  for  other  subjects,  the  law  of  mar- 
riage, for  instance,  or  of  sale,  or  of  police  administra- 
tion. Each  legislature  therefore  (Congress  and  the 
State  Legislature)  has  only  a  part  of  the  sum  total  of 
supreme  legislative  power ;  and  each  is  moreover  further 
limited  by  the  fact  that  the  Constitution  of  the  United 
States  restricts  the  general  powers  of  Congress  by  for- 
bidding it  to  do  certain  things,  while  the  powers  of  each 
State  Legislature  are  restricted  not  only  by  the  Consti- 
tution of  the  particular  State  but  by  the  Constitution  of 
the  United  States  also.  These  complications,  however, 
do  not  affect  the  general  principle.  In  every  country 
the  legal  Sovereign  is  to  be  found  in  the  authority,  be 
it  a  Person  or  a  Body,  whose  expressed  will  binds  others, 
and  whose  will  is  not  liable  to  be  overruled  by  the  ex- 
pressed will  of  any  one  placed  above  him  or  it.  The 
law  may,  in  giving  this  supremacy,  limit  it  to  certain 
departments,  and  may  divide  the  whole  field  of  legisla- 
tive or  executive  command  between  two  or  more  au- 
thorities. The  Sovereignty  of  each  of  these  authori- 
ties will  then  be,  to  the  lawyer's  mind,  a  partial  Sove- 
reignty. But  it  will  none  the  less  be  a  true  Sovereignty, 
sufficient  for  the  purposes  of  the  lawyer.  He  may  some- 
times find  it  troublesome  to  determine  in  any  particular 
instance  the  range  of  action  allotted  to  each  of  the  seve- 
ral Sovereign  authorities.  But  so  also  is  it  sometimes 
troublesome  to  decide  how  far  a  confessedly  inferior 
authority  has  kept  within  the  limits  of  the  power  con- 
ferred upon  it  by  the  supreme  authority.  The  question 
is  in  both  sets  of  cases  a  question  of  interpreting  the  law, 
which  defines  in  the  one  case  the  sphere  of  power,  in  the 


508  THE  NATURE  OF  SOVEREIGNTY 

other  case  the  extent  of  delegation  actually  made ;  and 
this  difficulty  nowise  affects  the  truth  that  legal  Sove- 
reignty is  capable  of  being  divided  between  co-ordinate 
authorities,  or  of  being  from  time  to  time  interrupted, 
or  rather  overridden,  by  the  action  of  a  power  not  regu- 
larly at  work.  It  will  be  understood  that  I  am  now  deal- 
ing with  Legal  Sovereignty  only,  and  not  at  this  stage 
touching  the  question  of  whether,  from  the  point  of 
view  of  philosophic  theory,  Sovereignty  is  capable  of 
division. 

Finally,  let  it  be  noted  that  where  Sovereignty  is  di- 
vided between  two  or  more  authorities,  one  of  those 
(or  possibly  even  more  than  one)  may  have  executive 
functions  only.  Where  there  is  but  one  Sovereign  Per- 
son or  Body,  that  Person  or  Body  will  evidently  have 
both  legislative  and  executive  powers,  i.e.  will  be  entitled 
to  issue  special  commands  as  well  as  to  prescribe  general 
rules.  But  a  division  of  Sovereignty  may  assign  legisla- 
tive functions  to  one  authority,  executive  to  another.  In 
the  United  States,  for  instance,  the  President  is,  by  the 
Constitution,  Sovereign  for  certain  executive  purposes 
(e.g.  the  command  of  the  army),  and  the  legislature  can- 
not deprive  him  of  that  Sovereignty.  If  Congress  were 
to  pass  an  Act  taking  the  command  of  the  army  from 
him,  that  Act  would  be  void.  So  in  England  four  cen- 
turies ago,  although  Parliament  was  already  beginning 
to  be  recognized  as  sovereign  for  legislative  purposes, 
the  king  had,  in  some  departments,  an  executive  sove- 
reignty which  the  two  Houses  of  Parliament  did  not  dis- 
pute ;  and  he  laid  claim  in  the  time  of  the  first  two  Stuarts 
to  a  sort  of  concurrent  legislative  sovereignty,  which  it 
required  first  a  civil  war  and  then  a  revolution  finally  to 
negative  and  extinguish. 

So  also  it  has  been  argued  that  Legal  Sovereignty 
may  be  temporary,  yet  complete  while  it  lasts,  as  was 
that  of  a  Roman  dictator.  The  phenomenon  is  so  rare 
that  we  need  not  spend  time  on  discussing  it ;  but  there 
seems  to  be  in  principle  nothing  to  prevent  absolute 


THE  NATURE  OF  SOVEREIGNTY  509 

legal  control  from  being  duly  vested  in  a  person  or  body 
of  persons  for  a  term  which  he,  or  they,  cannot  extend. 

The  kind  of  Sovereignty  we  have  been  considering 
is  created  by  and  concerned  with  law,  and  law  only.  It 
has  nothing  to  do  with  the  actual  forces  that  exist  in  a 
State,  nor  with  the  question  to  whom  obedience  is  in  fact 
rendered  by  the  citizens  in  the  last  resort.  It  represents 
merely  the  theory  of  the  law,  which  may  or  may  not 
coincide  with  the  actual  facts  of  the  case,  just  as  the  va- 
lidity of  the  demonstration  of  the  fifth  proposition  in  the 
first  book  of  Euclid  has  nothing  to  do  with  the  accuracy 
with  which  the  lines  of  any  actual  figure  of  that  propo- 
sition are  drawn.  The  triangle  in  the  figure  which  ap- 
pears in  a  particular  copy  of  the  book  may  not  have 
equal  sides,  nor  the  angles  at  the  base  be  equal;  this 
does  not  affect  the  soundness  of  the  proof,  which  as- 
sumes the  correctness  of  the  figure.  So  law  assumes, 
and  must  assume  all  through,  that  the  machinery  re- 
quired for  its  enforcement  is  working  in  vacua,  steadily, 
equably,  and  in  a  manner  capable  of  overcoming  resist- 
ance. The  actual  receiving  of  obedience  is  therefore 
not  (as  some  have  argued)  the  characteristic  mark  of  a 
Sovereign  authority,  but  is  a  postulate  of  the  law  with  re- 
gard to  each  and  every  of  the  authorities  it  recognizes. 
Penal  laws  no  doubt  contemplate  transgression,  but  they 
assume  the  power  of  overcoming  it.  With  the  fact  that 
obedience  is  in  any  given  community  rendered  imper- 
fectly or  not  rendered  at  all,  Law  as  such  has  nothing 
to  do.  In  other  words,  the  question  of  where  Legal 
Supremacy  resides  is  a  pure  question  of  Right  as  de- 
fined by  law.  The  Sovereign  who  exists  as  of  right  (de 
hire}  has  not  necessarily  anything  to  do  with  the  Sove- 
reign who  prevails  in  fact  (de  facto),  though,  as  we  shall 
see  presently,  the  two  conceptions,  however  distinct 
scientifically,  exercise  a  significant  influence  each  on 
the  other. 

Further:  the  question,  Who  is  Legal  Sovereign? 
stands  quite  apart  from  the  questions,  Why  is  he  Sove- 


510  THE  NATURE  OF  SOVEREIGNTY 

reign?  and,  Who  made  him  Sovereign?  The  historical 
facts  which  have  vested  power  in  any  given  Sovereign, 
as  well  as  the  moral  grounds  on  which  he  is  entitled  to 
obedience,  lie  outside  the  questions  with  which  Law  is 
concerned,  and  belong  to  history,  or  to  political  philo- 
sophy, or  to  ethics ;  and  nothing  but  confusion  is  caused 
by  intruding  them  into  the  purely  legal  questions  of  the 
determination  of  the  Sovereign  and  the  definition  of  his 
powers.  Even  the  manner  in  which,  or  the  determina- 
tion of  the  persons  by  whom,  the  Legal  Sovereign  is 
chosen  is  a  matter  distinct  from  the  nature  and  scope 
of  his  authority.  He  is  not  the  less  a  Sovereign  in  the 
contemplation  of  law  because  he  reigns  not  by  his  own 
right  but  by  the  choice  of  others,  as  an  elective  monarch 
(like  the  Romano-Germanic  emperor)  did,  or  as  an  elec- 
tive assembly  does  to-day.  The  appointing  body,  even 
if  it  can  in  a  stated  way  and  at  a  stated  time  recall  its 
appointment,  is  not  sovereign  over  him  while  his  powers 
last.  The  fact  that  the  House  of  Commons,  a  part  of  the 
Legal  Sovereign  of  England,  is  chosen  by  the  people,  and 
that  many  members  of  the  House  of  Lords,  another  part 
of  the  Legal  Sovereign,  have  been  appointed  by  the 
Crown,  does  not  affect  the  Sovereignty  of  Parliament, 
because  neither  the  people  nor  the  Crown  have  the  right 
of  issuing  directions,  legally  binding,  to  the  persons 
they  have  selected. 

We  have  already  seen  that  Legal  Sovereignty  may  be 
limited  or  divided.  But  it  is  further  to  be  noted  that 
the  totality  of  possible  legal  sovereignty  may,  in  a  given 
State,  not  be  vested  either  in  one  sovereign  or  in  all  the 
sovereign  bodies  and  persons  taken  together.  In  other 
words,  there  may  be  some  things  which  by  the  constitu- 
tion of  the  State  no  authority  is  competent  to  do,  because 
those  things  have  been  placed  altogether  out  of  the  reach 
of  legislation.  We  have  already  remarked  that  all  the 
American  constitutions,  for  instance,  both  State  and 
Federal,  forbid  the  legislature  to  interfere  with  the  so- 
called  '  primordial  rights  '  of  the  citizen.  There  is  thus 


THE  NATURE  OF  SOVEREIGNTY  511 

in  the  United  States  no  authority  invested  with  legal 
power,  in  time  of  peace,  to  prohibit  public  meetings  not 
threatening  public  order,  or  to  suppress  a  newspaper. 
It  is  true  that  the  people  of  each  State  (or  of  the  Union) 
retain  the  power  to  alter  their  Constitution,  but  until 
or  unless  they  do  alter  it  the  acting  legal  Sovereign  re- 
mains debarred  from  an  important  part  of  the  power  of 
Sovereignty.  And  we  may  imagine  a  case  in  which  a 
Constitution  has  been  enacted  with  no  provision  for  any 
legal  method  of  amending  it1.  In  fact,  a  somewhat 
similar  condition  of  things  exists  in  all  Musulman  coun- 
tries. In  Turkey,  the  Sultan,  though  Sovereign,  is  sub- 
ject to  the  Sheriat  or  Sacred  Law,  which  he  cannot  alter  j 
and  which  no  power  exists  capable  of  altering.  A  good 
deal  may  be  done  in  the  way  of  interpretation;  and  the 
desired  Fetwa  or  solemnly  rendered  opinion  of  the  Chief 
Mufti  or  Sheik-ul-Islam  can  generally  be  obtained  by 
adequate  extra-legal  pressure  on  the  Sultan's  part.  But 
no  Sultan  would  venture  to  extort,  and  probably  no 
Mufti  to  render,  a  fetwa  in  the  teeth  of  some  sentence 
of  the  Koran  itself,  which,  with  the  Traditions,  is  the 
ultimate  source  of  the  Sacred  Law,  binding  all  Muslims 
always  and  everywhere. 

III.   PRACTICAL  SOVEREIGNTY  (De  Facto). 

We  may  now  turn  back  to  the  more  popular  mean- 
ing in  which  the  term  Sovereignty  is  used  by  others  than 
lawyers  2.  Even  to  the  ordinary  layman  it  generally 
seems  to  convey  some  sort  of  notion  of  legal  right,  yet 
it  may  be,  and  sometimes  has  been,  used  to  denote 
simply  the  strongest  force  in  the  State,  whether  that 
force  has  or  has  not  any  recognized  legal  supremacy. 

1  This  seems  to  be  the  case  in  Spain.  Some  of  the  republics  of  antiquity  pro- 
fessed to  have  unchangeable  laws,  but  few,  if  any,  of  these  fully  answered  to  the 
conception  of  a  Rigid  Constitution  as  we  understand  it.  See  Essay  III,  p.  124. 

3  I  pass  by  the  sense  in  which  it  is  applied  to  the  person  of  a  monarch,  whether 
limited  or  absolute,  as  the  king  is  in  any  country  called  the  Sovereign,  because  that 
sense  is  not  liable  to  be  confused  with  the  purely  legal  sense.  A  Nominal  Sovereign 
need  not  be,  and  often  is  not,  either  a  Legal  or  a  Practical  Sovereign. 


512  THE  NATURE  OF  SOVEREIGNTY 

This  strongest  force  may  be  a  king,  or  an  assembly,  or  an 
oligarchic  group  controlling  a  king  or  an  assembly,  or 
an  army,  or  the  chief  or  chiefs  of  an  army.  It  may  be 
and  ought  to  be  the  legal  sovereign,  or  it  may  be  quite 
distinct  from  the  legal  sovereign  and  possess  no  admitted 
status  in  the  Constitution.  The  expression  is  perhaps 
most  frequent  in  the  phrase  '  Sovereign  Power,'  which 
carries  with  it  the  idea  of  its  being,  whether  legal  or  not, 
at  any  rate  irresistible.  We  may  define  this  dominant 
force,  whom  we  may  call  the  Practical  Sovereign,  as  the 
person  (or  body  of  persons)  who  can  make  his  (or  their) 
will  prevail  whether  with  the  law  or  against  the  law.  He 
(or  they)  is  the  de  facto  ruler,  the  person  to  whom  obe- 
dience is  actually  paid. 

It  is  better  not  to  say  '  the  person  who  compels  obe- 
dience '  or  '  the  person  who  commands  physical  force/ 
because  it  may  not  be  under  positive  compulsion,  but  in 
virtue  of  other  sources  of  power  than  the  command  of 
physical  force,  that  obedience  is  in  fact  rendered.  Re- 
ligious influence  or  moral  influence  or  habit  may  dis- 
pose men  not  only  themselves  to  obey,  but  to  place  their 
service  in  making  others  obey  at  the  disposal  of  the  per- 
son to  whom  such  influence  belongs.  A  priest  or  a 
prophet  may  be  stronger  than  the  king. 

The  best  instances  of  the  Practical  or  Actual  Sove- 
reign are  to  be  found  in  communities  where  legal  sove- 
reignty is  in  dispute  or  has  disappeared.  Cromwell  when 
he  dissolved  the  Long  Parliament,  Napoleon  when  he 
overthrew  the  Directory,  the  Convention  when  it  offered 
the  Crown  of  England  to  William  and  Mary,  the  Con- 
stituent Assembly  in  France  in  1871  when  it  made  peace 
with  Germany  before  any  regular  republican  constitu- 
tion had  been  adopted  for  France,  were  actually  Sove- 
reign. Even  where  a  Legal  Sovereign  exists,  there  are 
sometimes  particular  persons  or  groups  who  stand  out 
as  able  to  control  the  State.  However,  although  Thu- 
cydides  speaks  of  Pericles  as  exercising  practical  control 
in  Athens,  it  would  be  going  too  far  to  apply  to  him  or 


THE  NATURE  OF  SOVEREIGNTY  513 

to  any  person  in  his  position  such  a  description  as  that 
of  dc  facto  sovereign.  In  most  of  the  South  American 
republics  the  Practical  Sovereign  is  the  army,  or  a 
general  (or  combination  of  generals)  whom  the  army, 
whether  or  no  this  general  be  in  fact  President,  will  fol- 
low. In  Egypt,  though  the  Legal  Sovereign  is  the  Khe- 
dive— for  little  regard  need  be  had  to  the  theoretical 
suzerainty  of  the  Turk,  which  is  put  in  force  only  when 
the  European  Powers  choose  to  use  it  for  their  own  pur- 
poses— the  Practical  Sovereign  has  for  some  years  past 
been  the  British  Government.  In  Rome,  after  the  revo- 
lution which  overthrew  the  republic,  the  Practical  Sove- 
reign was  Octavianus  Augustus,  though  the  Legal  Sove- 
reignty remained  vested  in  the  People,  subject  to  the 
claim  of  the  Senate  to  exercise  certain  powers.  In  Syra- 
cuse under  Dionysius  the  Elder,  in  Florence  under  Lo- 
renzo dei  Medici,  each  of  those  tyrants  was  Practical 
Sovereign,  though  neither  enjoyed  legal  supremacy.  In 
England  people  are  accustomed  to  call  the  House  of 
Commons  the  '  sovereign  power/  though  the  law  makes 
the  consent  of  the  other  House  and  that  of  the  Crown 
just  as  necessary  to  the  validity  of  a  statute  as  is  that 
of  the  representatives  of  the  people.  In  Denmark  within 
our  own  time  the  Practical  Sovereign  was  for  some 
years  the  King,  because  the  Constitution,  which  gives 
legal  sovereignty  to  the  Legislature  and  King  together, 
was  for  a  while  virtually  in  abeyance,  there  having  been  a 
struggle  and  deadlock  during  which  the  Crown  retained 
its  ministers  and  raised  taxes  without  the  concurrence  of 
the  popular  house.  One  might  refer,  by  way  of  illustra- 
tion, to  cases  in  which  some  private  organization  exerts 
a  power  which  interferes  with  that  of  the  dc  iure  govern- 
ment. Such  was  the  Vehmgericht  in  Westphalia  in  the 
fifteenth  century,  such,  on  a  much  smaller  scale  and  in 
a  less  effective  way,  were  the  Molly  Maguires  of  Penn- 
sylvania and  the  Mafia  of  Sicily.  But  these  cases  lie 
quite  outside  our  definition :  as  do  those  of  monarchies 
in  which  a  strong  minister  or  a  father  confessor  or  even 


614  THE  NATURE  OF  SOVEREIGNTY 

a  court  favourite  has  held  the  position  of  Practical  Sove- 
reign, that  is  to  say,  has  been  the  person  who  would  and 
could  have  his  way,  wielding  the  powers  of  the  State  at 
his  sole  pleasure  through  his  influence  upon  the  will  of 
the  titular  sovereign1. 

The  Musulman  world  furnishes  two  instances  which 
deserve  a  passing  word.  The  Mogul  Emperors  after 
Aurungzebe  continued  to  be  sovereigns  de  iure  for  a  long 
time  in  Northern  and  Central  India,  though  it  was  hard 
to  say,  till  the  East  India  Company  extended  its  con- 
quests far  inland,  who  was  sovereign  de  facto.  Since  the 
time  of  Sultan  Selim  the  First  (A.D.  1516)  the  Turkish 
Sultans  have  been  (in  large  measure)  Khalifs  de  facto. 
They  claim  to  be  Khalifs  de  hire,  but  the  better  opinion 
among  Muslim  sages  is  that  the  Khalif  must  be,  as  were 
the  Ommiyads  and  the  Abbasides,  of  the  tribe  of  the 
Khoreish,  to  which  Muhamad  belonged,  and  in  matters 
of  such  high  sanctity  long  possession  de  facto  makes  no 
difference.  Possibly  therefore  the  Shereef  of  Mecca  may 
be  better  entitled  to  call  himself  the  Khalif  de  iure,  en- 
titled to  the  obedience  of  all  the  Faithful. 

Where  the  Legal  is  not  also  the  Practical  Sovereign, 
it  is  obviously  a  far  more  difficult  task  to  discover  the 
latter  than  the  former.  As  respects  legal  power  there 
are  the  fixed  rules  of  law,  which  in  communities  that 
have  reached  a  certain  stage  of  development  indicate 
clearly  the  person  (or  body)  to  whom  the  ultimate  right 
of  legislation,  or  of  issuing  executive  orders,  belongs. 
But  the  political  philosopher  or  historian  who  wishes 
to  ascertain  the  actually  strongest  force  in  a  State  lacks 
the  guidance  of  such  rules  as  the  lawyer  possesses.  He 
has  to  do  with  facts  which  are  uncertain,  with  forces 
which  are  imponderable.  In  no  two  countries,  more- 
over, are  the  phenomena  of  Practical  Sovereignty  quite 
the  same.  Nevertheless  it  is  true  that  there  is  in  every 
State  a  Strongest  Force,  a  power  to  which  other  powers 

1  During  part  of  Lewis  the  Fifteenth's  reign  Madame  Du  Barry  might  almost 
have  been,  and  probably  was,  described  as  sovereign  de  facto  of  France. 


THE  NATURE  OF  SOVEREIGNTY  515 

bow,  and  of  which  it  may  be,  more  or  less  positively, 
predicted  that  in  case  of  conflict  it  will  overcome  all  re- 
sistance. Here,  however,  we  come  upon  one  of  the 
many  difficulties  that  beset  an  inquiry  into  practical  su- 
premacy. Are  we  to  take  a  condition  of  peace,  and  ask 
whose  will  actually  prevails  while  peace  lasts,  or  are  we 
to  suppose  a  condition  of  war,  and  ask  who  would  pre- 
vail if  the  strife  between  contending  authorities  were 
to  be  fought  out  by  physical  force  ?  In  the  before-men- 
tioned case  of  Denmark,  for  instance,  though  the  Crown 
practically  carried  on  the  government,  it  was  by  no 
means  clear  that,  if  an  insurrection  broke  out,  the  Crown 
would  prove  to  be  stronger  than  the  popular  chamber 
or  those  who  supported  it.  In  such  inquiries  the  pre- 
cision with  which  Legal  Sovereignty  can  be  determined 
is  unattainable,  for  the  political  student  finds  that  the 
terms  suited  to  the  phenomena  of  one  country  are  un- 
suited  to  those  of  another,  and  that  his  general  propo- 
sitions regarding  the  actually  Sovereign  Powers  must  be 
subject  to  so  many  qualifications  that  they  virtually 
cease  to  be  general. 

We  have,  however,  found  in  every  political  commu- 
nity two  kinds  of  Sovereign,  belonging  to  two  different 
spheres  of  thought,  the  Sovereign  dc  hire  and  the  Sove- 
reign dc  facto.  Let  us  see  what  are  the  relations  of  the 
two  conceptions,  or  the  two  concrete  persons,  each  to 
the  other. 

IV.   THE  RELATIONS  OF  LEGAL  TO  PRACTICAL 
SOVEREIGNTY. 

The  Sovereign  dc  lure  may  also  be  the  sovereign  de 
facto.  He  ought  to  be  so ;  that  is  to  say,  the  plan  of  a 
well-regulated  State  requires  that  Legal  Right  and 
Actual  Power  should  be  united  in  the  same  person  or 
body.  Right  ought  to  have  on  its  side,  available  for  its 
enforcement,  physical  force  and  the  habit  of  obedience. 
Where  Sovereignty  de  facto  is  disjoined  from  Sove- 


516  THE  NATURE  OF  SOVEREIGNTY 

reignty  de  iure,  there  will  not  necessarily  be  a  collision, 
because  the  former  power  may  act  through  the  latter. 
But  there  is  always  a  danger  that  the  laws  will  be  over- 
ridden by  the  Practical  Sovereign  and  disobeyed  by  the 
citizens. 

Sovereignty  de  iure  and  sovereignty  de  facto  have  a 
double  tendency  to  coalesce;  and  it  is  this  tendency 
which  has  made  them  so  often  confounded. 

Sovereignty  de  facto,  when  it  has  lasted  for  a  certain 
time  and  shown  itself  stable,  ripens  into  Sovereignty  de 
iure.  Sometimes  it  violently  and  illegally  changes  the 
pre-existing  constitution,  and  creates  a  new  legal  system 
which,  being  supported  by  force,  ultimately  supersedes 
the  old  system.  Sometimes  the  old  constitution  be- 
comes quietly  obsolete,  and  the  customs  formed  under 
the  new  de  facto  ruler  become  ultimately  valid  laws,  and 
make  him  a  de  iure  ruler.  In  any  case,  just  as  Posses- 
sion in  all  or  nearly  all  modern  legal  systems  turns  itself 
sooner  or  later  through  Prescription  into  Ownership 
— and  conversely  possession  as  a  fact  is  aided  by  title 
or  reputed  title — so  de  facto  power,  if  it  can  maintain 
itself  long  enough,  will  end  by  being  de  iure.  Mankind, 
partly  from  the  instinct  of  submission,  partly  because 
their  moral  sense  is  disquieted  by  the  notion  of  power 
resting  simply  on  force,  are  prone  to  find  some  reason 
for  treating  a  de  facto  ruler  as  legitimate.  They  take  any 
pretext  for  giving  him  a  de  iure  title  if  they  can,  for  it 
makes  their  subjection  more  agreeable  and  may  impose 
some  restraint  upon  him. 

Sovereignty  de  iure  in  its  turn  tends  to  attract  to  itself 
sovereignty  de  facto,  or,  in  other  words,  the  possession 
of  legal  right  tends  to  make  the  legal  sovereign  actually 
powerful.  Hence  a  ruler  de  facto  is  always  anxious  to 
get  some  sort  of  de  iure  title,  and  Louis  Napoleon,  who 
had  seized  power  by  violence  in  1851,  thought  himself, 
and  doubtless  was,  more  secure  after  he  had  got  two 
(so-called)  plebiscites  in  his  favour  in  1852,  recognizing 
him  first  as  President  for  ten  years  and  then  Emperor. 


THE  NATURE  OF  SOVEREIGNTY  517 

This  is  not  merely  because  the  Legal  Sovereign  has  pre- 
sumably a  moral  claim  to  obedience — I  say  presumably, 
because  he  may  have  forfeited  this  claim  by  tyranny — 
but  also  because  most  men  are  governed  and  all  are  in- 
fluenced by  Habit,  and  therefore  tend  to  go  on  obeying 
the  person  they  have  theretofore  obeyed.  It  is  more- 
over easier,  in  case  of  conflict,  to  know  who  is  dc  inrc 
sovereign  than  to  foretell  who  will  prove  to  be  sovereign 
de  facto;  and  whereas  the  dc  iure  sovereign  is  certain,  if 
victorious,  to  punish  as  rebels  those  who  have  opposed 
him,  the  de  facto  sovereign,  having  been  himself  a  rebel, 
may  possibly  be  more  indulgent.  Under  King  Henry 
the  Seventh  in  England  express  provision  was  made  by 
statute  for  the  protection  of  persons  obeying  a  de  facto 
king l.  Accordingly,  when  strife  arises  between  two  per- 
sons or  bodies  of  nearly  equal  physical  resources,  each 
claiming  authority,  the  person  who  has  the  better  legal 
claim  will  usually  have  the  better  prospect  of  success, 
and  the  ordinary  citizen  will  be  safer  in  siding  with  him. 
This  is  one  of  the  reasons  why  conspiracies  and  insurrec- 
tions, even  against  the  worst  de  iure  sovereigns,  so  often 
fail. 

Similarly  it  happens  that  where  sovereignty  de  iure 
is  in  dispute  and  uncertain,  strife  is  likely  to  trouble  the 
practical  sphere  in  the  hands  of  the  claimant  who  for 
the  moment  holds  the  government  de  facto;  and  this  not 
merely  because  some  of  the  people  are  zealous  to  support 
rights  which  they  think  infringed  upon,  but  also  because 
the  sense  of  stability  which  supports  a  government  has 
been  impaired,  and  the  usual  check  on  a  resort  to  physi- 
cal force  thereby  removed. 

When  a  sovereign  has  been  long  and  quietly  estab- 
lished de  iure,  the  distinction  between  law  and  fact  is 
forgotten,  and  people  assume  that  whoever  has  the  legal 
right  will  also  as  a  matter  of  course  have  the  physical 
force  to  support  it.  This  tends  to  make  the  distinction 
forgotten.  Conversely,  when  de  facto  sovereignty  is 

1  ii  Henry  VII,  cap.  i. 


518  THE  NATURE  OF  SOVEREIGNTY 

frequently  in  dispute,  as  happened  in  the  Roman  Empire 
during  part  of  the  third  century  A.D.,  and  happens  now 
in  some  of  the  so-called  republics  of  Central  and  South 
America,  the  dc  iure  sovereign  virtually  disappears,  and 
nothing  but  the  actual  strength  of  each  dc  facto  sove- 
reign, or  pretender  to  sovereignty,  is  regarded.  Some 
of  these  republics  are  so  much  accustomed  to  the  sus- 
pension of  de  iure  government  by  dc  facto  disturbance, 
that  they  provide  that  when  a  rebellion  is  over  the  pre- 
viously enacted  constitution  shall  be  deemed  not  to  have 
lost  its  force1.  It  might  be  expected  that  when  such  a 
state  of  things  has  continued  and  become  familiar,  the 
conception  of  a  legal  sovereign  would  itself  fade  away 
and  be  extinguished.  But  political  necessities  and  the 
example  of  other  countries  forbid  this  in  the  more  civi- 
lized communities.  It  is  so  convenient  to  all  parties  to 
maintain  the  fabric  of  ordinary  private  law  with  the  judi- 
cial and  executive  machinery  required  to  support  that 
fabric,  that  even  when  the  person  (or  set  of  persons)  who 
exercises  Practical  Sovereignty  is  frequently  changed 
by  revolutions,  the  substitution  of  one  head  for  another 
is  not  deemed  to  affect  the  general  machinery.  Admini- 
stration is  held  to  go  on  de  iure,  and  the  new  occupant  of 
the  supreme  power  steps  at  once  into  the  legal  position 
of  his  predecessor.  In  the  Roman  Empire  of  the  first 
four  centuries  of  our  era,  the  office  of  Emperor  remained 
with  its  recognized  functions  and  powers,  though  the 
holder  of  the  office  was  frequently  changed  by  violent 
means,  and  seldom  possessed  what  lawyers  would  call 
a  good  title.  The  individual  man  was  a  pure  de  facto 
sovereign,  often  with  no  legal  right  to  the  obedience  of 
the  subject,  but  Caesar  Augustus  remained  unchanged, 
and  probably  five-sixths  of  the  population  of  the  Empire 
did  not  know  the  personal  name  or  the  previous  history 
of  him  whom  they  revered  as  Caesar  Augustus.  So  the 

1  Thus  the  Constitution  of  Guatemala  directs :  '  Esta  Constitucion  no  perderd 
su  fuerza  y  vigor  auncuando  poralguna  rebelion  se  interrnmpa  su  observancia.'  I 
take  this  instance  from  the  book  of  M.  Ch.  Borgeaud,  fctablisse-ment  et  Revision 
des  Constitutions,  p.  236. 


THE  NATUIfE  OF  SOVEREIGNTY  519 

changes  in  the  constitution  of  France  between  January, 
1848,  and  February,  1871,  in  which  there  were  three  total 
and  absolute  ruptures  of  legal  continuity  by  revolution, 
with  two  interregna  under  provisional  governments,  had 
little  effect  on  the  laws  or  the  courts  or  the  civil  admini- 
stration of  France.  The  same  thing  happened  during 
the  dynastic  wars  of  the  fifteenth  century  in  England. 
Thus  even  in  disorderly  times  the  idea  of  rule  dc  in  re 
is  not  lost  among  peoples  that  have  once  imbibed  it. 
All  through  the  English  Civil  War  and  Protectorate  of 
the  seventeenth  century  strenuous  efforts  were  made  by 
the  Long  Parliament  and  by  Oliver  Cromwell  to  make 
their  government  appear  to  be  dc  iurc,  though  the  Resto- 
ration Parliament  treated  it  as  having  been  (on  the 
whole)  de  facto.  In  most  Central  or  South  American 
republics,  on  the  other  hand,  as  among  the  Italian  re- 
publics of  the  fourteenth  century,  the  interferences  of 
the  de  facto  sovereign  with  the  course  of  law  and  ad- 
ministration are  so  numerous  that  the  very  notion  of 
dc  hire  government  loses  its  practical  efficacy,  and  people 
simply  submit  to  force,  praising  the  ruler  who  least 
abuses  his  despotic  power. 

The  action  and  reaction  of  power  de  iure  and  de  facto 
upon  one  another  might  be  illustrated  by  a  diagram — a 
sort  of  political  seismographic  record — showing  how  the 
disturbance  of  either  disturbs  the  other,  and  how  the 
steadiness  of  the  dc  iurc  needle  or  the  frequent  quiverings 
of  the  de  facto  needle  indicate  the  stability  or  instability 
of  the  institutions  of  a  country.  One  may  express  the 
relations  of  the  two  somewhat  as  follows: — 

When  Sovereignty  de  iurc  attains  its  maximum  of 
quiescence,  Sovereignty  dc  facto  is  usually  also 
steady,  and  is,  so.  to  speak,  hidden  behind  it. 

When  Sovereignty  dc  iurc  is  uncertain,  Sovereignty 
de  facto  tends  to  be  disturbed. 

When  Sovereignty  de  facto  is  stable,  Sovereignty 
de  iurc,  though  it  may  have  been  lost  for  a  time, 
reappears,  and  ultimately  becomes  stable. 


520  THE  NATURE  OF  SOVEREIGNTY 

When  Sovereignty  de  facto  is  disturbed,  Sovereignty 

de  mre  is  threatened. 

Or,  more  shortly,  the  slighter  are  the  oscillations  of 
each  needle,  the  more  do  they  tend  to  come  together 
in  that  coincidental  quiescence  which  is  an  index  to  the 
perfect  order,  though  not  otherwise  to  the  excellence, 
of  a  government. 

Let  us  try  to  sum  up  the  propositions  to  which  the 
foregoing  inquiry  has  led  us : — 

The  term  Sovereignty  is  used  in  two  senses,  Legal 
Supremacy  and  Practical  Mastery. 

Legal  Sovereignty  exists  in  the  sphere  of  Law:  it 
belongs  to  him  who  can  demand  obedience  as  of 
Right. 

Practical  Sovereignty  exists  in  the  sphere  of  Fact: 
it  is  the  power  which  receives  and  can  by  the 
strong  arm  enforce  obedience. 

The  Legal  Sovereign  in  any  State  is  ascertained  by 
determining  the  Person  (or  Body)  to  whom  the 
law  assigns  in  the  last  resort  the  right  of  issuing 
general  rules  or  special  orders,  or  of  doing  acts 
without  incurring  liability  therefor. 
The  Practical  Sovereign  is  ascertained  by  deter- 
mining who  is  the  Person  (or  Body)  whose  will 
in  the  last  resort  prevails  (or  in  case  of  conflict, 
will  be  likely  to  prevail)  against  all  other  wills. 
Legal  Sovereignty  does  not  depend  upon  the  obe- 
dience actually  rendered;  for  the  law  assumes 
obedience  to  be  always  enforceable.  Obedience 
paid  is  not  a  note  characterizing  the  Legal  Sove- 
reign, but  a  Postulate  of  his  existence.  That  the 
Legal  Sovereign  does  in  fact  exercise  his  rights 
under  the  influence  of  another  person  (or  body) 
makes  no  difference.  He  is  none  the  less  a  Legal 
Sovereign.  A  Mikado  is  Legal  Sovereign  though 
the  Shogun  may  rule  in  his  name.  Thus  Legal 
Sovereignty  is  Formal,  not  Material. 
Legal  Sovereignty  is  Divisible:  I.e.  different 


THE  MATURE  OF  SOVEREIGNTY  521 

branches  of  it  may  be  concurrently  vested  in 
different  Persons  (or  Bodies),  co-ordinate  alto- 
gether (Pope  and  Emperor),  or  co-ordinate  par- 
tially only  (President  and  Congress),  though  act- 
ing in  different  spheres. 

Practical  Sovereignty  seems  indivisible,  for  by  its 
definition  it  can  belong  to  one  Person  (or  Body) 
only,  viz.  that  which  is  actually  the  strongest 
(though  perhaps  not  known  to  be  the  strongest) 
in  the  State.  But  it  may  be  so  far  divided  that 
men  obey  one  ruler  in  one  sphere  of  action  and 
another  in  another  sphere.  In  the  fourteenth 
century,  for  instance,  all  Christians  obeyed  the 
Pope  in  spiritual  matters,  their  secular  govern- 
ment in  temporal,  and  this  whether  the  latter  was 
only  dc  facto  or  also  dc  in  re.  There  might  of 
course  be  much  dispute  as  to  what  were  spiritual 
matters,  but  no  one  denied  that  in  matters  which 
were  really  spiritual  the  Church  alone  should  be 
obeyed. 

Legal  Sovereignty  may  be  Limited,  i.e.  the  law  of 
any  given  State  may  not  have  allotted  to  any 
one  Person  (or  Body),  or  to  all  the  Persons  (or 
Bodies)  taken  together,  who  enjoys  (or  enjoy) 
supreme  legislative  (or  executive)  power,  the 
right  to  legislate,  or  to  issue  special  orders,  on 
every  subject  whatever.  That  is  to  say,  some 
subjects  may  be  reserved  to  the  whole  People, 
or  may  be  declared  unsusceptible  of  being  legis- 
lated on  at  all,  even  by  the  whole  people.  If  there 
be  a  reservation  to  the  people  of  an  ultimate  de- 
cision on  all  subjects,  as  for  instance  by  way 
of  constant  Referendum,  the  people  and  not  the 
legislature  may  be  the  true  Legal  Sovereign.  But 
a  right  reserved  to  the  people  of  qualified  inter- 
ference, or  of  altering  the  powers  of  the  Legisla- 
ture from  time  to  time,  does  not  of  itself  deprive 
the  legislature  of  legal  sovereignty. 


522  THE  NATURE  OF  SOVEREIGNTY 

Practical  Sovereignty  is,  by  definition,  incapable  of 
being  limited  (for  Law  has  nothing  to  do  with  it), 
though  the  exercise  of  it  by  its  possessor  may  be 
restrained  by  the  fear  of  consequences. 
Although  Legal  and  Practical  Sovereignty  are  dis- 
tinct conceptions,  belonging  to  different  spheres,  they 
are  in  so  far  related  that — 

Legal  Authority  is  a  potent  factor  in  creating  Prac- 
tical Mastery. 

Practical   Mastery  usually  ripens,  after  a  certain 

time,  into  Legal  Authority. 
Thus— 

In  an  orderly  State,  the  respect  for  Legal  Sove- 
reignty keeps  questions  of  Practical  Sovereignty 
in  abeyance. 

In  a  disorderly  State,  conflicts  regarding  Practical 
Sovereignty  weaken  and  ultimately  destroy  the 
respect  for  Legal  Sovereignty. 

To  which  we  may  add,  with  a  view  to  questions  to  be 
discussed  presently — 

Questions  of  the  Moral  Rights  conferred  and  the 
Moral  Duties  imposed  by  Sovereignty,  whether 
Legal  or  Practical,  belong  to  a  different  province 
from  that  in  which  the  determination  of  the  nature 
of  either  kind  of  Sovereignty  lies.  Such  questions 
are  however  in  so  far  related  to  these  two  that — 

Legal  Sovereignty  carries  with  it  a  prima  facie  moral 
claim  to  the  obedience  of  all  citizens ; 

Practical  Sovereignty  carries  with  it  no  further 
moral  claim  to  obedience  than  such  as  arises  from 
the  fact  that  a  useless  resistance  to  superior  physi- 
cal force  tends  to  breaches  of  the  peace  and  to 
suffering  which  might  be  spared. 

In  both  cases  it  may  be  the  duty  of  the  citizen, 
where  some  higher  moral  interest  than  that  of 
avoiding  breaches  of  the  peace  is  involved,  to  re- 
sist either  the  Legal  or  the  Practical  Sovereign. 
Let  it  be  further  noted  that  though  one  is  obliged  to 


////.    \ATURE  OF  SOVEREIGNTY  523 

speak  of  the  Practical  Sovereign  as  exerting  a  limitless 
power,  and  as  some  of  those  who  have  written  on  Sove- 
reignty describe  the  Sovereign  as  being  subject  to  no 
restraint  whatever,  his  sole  will  being  absolutely  domi- 
nant over  all  his  subjects,  there  has  never  really  existed 
in  the  world  any  person,  or  even  any  body  of  persons, 
enjoying  this  utterly  uncontrolled  power,  with  no  exter- 
nal force  to  fear  and  nothing  to  regard  except  the  grati- 
fication of  mere  volition.  The  most  despotic  monarch 
is  bound  to  respect,  and  often  to  bow  to,  the  general 
sentiment  of  his  subjects.  From  some  acts  even  a  Sultan 
Hakim  in  Egypt  or  a  Gian  Galeazzo  Visconti  in  Milan 
recoils,  because  he  feels  they  might  provoke  an  insur- 
rection or  bring  about  his  own  assassination.  A  popular 
majority  (although  also  to  some  extent  limited)  is  less 
sensitive,  because  individuals,  nearly  all  of  them  obscure, 
have  less  to  fear.  In  this  sense  a  democracy,  that  is  to 
say,  the  majority  in  a  democracy,  may  be  a  more  absolute 
sovereign  than  a  monarch.  But  the  majority  in  a  demo- 
cracy has  fewer  personal  temptations  to  abuse  power. 
It  is  moreover  checked  by  the  feeling  that  if  it  does  so 
it  may  alienate  its  own  more  moderate  section.  Hence 
it  becomes  tyrannical  only  when  it  is  swayed  by  violent 
passion,  or  when  it  is  sharply  divided  into  two  sections 
between  whom  no  moderate  party  is  left. 

V.    ROMAN  AND  MEDIAEVAL  VIEWS  OF  SOVEREIGNTY. 

Let  us  now  turn  to  consider  the  theory  of  Sovereignty 
which,  started  by  Hobbes,  reiterated  by  Jeremy  Ben- 
tham,  and  set  forth  with  dreary  prolixity  by  John  Austin, 
found  much  acceptance  in  England  during  the  first  three 
quarters  of  the  present  century,  though  it  has  latterly  lost 
its  former  prestige.  The  modern  form  of  Hobbes'  doc- 
trine (whose  original  form  will  be  presently  stated  and 
examined)  is  recommended  by  its  apparent  simplicity 
and  completeness.  But  we  shall  find  it  to  have  the  de- 
fects (i)  of  confounding  two  things  essentially  distinct, 


534  THE  NATURE  OF  SOVEREIGNTY 

the  sphere  of  law  and  the  sphere  of  fact ;  (2)  of  ignoring 
history;  and  (3)  of  being  inapplicable  to  the  great  ma- 
jority of  actual  States,  past  or  present.  It  can  be 
brought  into  conformity  with  the  facts  only  by  an  elabo- 
rate process,  either  of  rejecting  a  large  part  of  the  facts, 
or  else  of  torturing  and  twisting  the  conception  itself. 
A  rule  which  consists  chiefly  of  exceptions  is  not  a  help- 
ful rule.  In  the  human  sciences,  such  as  sociology,  eco- 
nomics, and  politics,  just  as  much  as  in  chemistry  or 
biology,  a  theory  ought  to  arise  out  of  the  facts  and  be 
suggested  by  them,  not  to  be  imposed  upon  the  facts  as 
the  product  of  some  a  priori  views.  If  it  needs  endless 
explanations  and  qualifications  in  order  to  adapt  it  to  the 
facts,  it  stands  self-condemned,  and  darkens  instead  of 
illumining  the  student's  mind. 

Obviously  however  no  such  theory  would  have 
emerged  or  for  so  long  commanded  respect  but  for 
causes  of  considerable  weight  and  permanence.  Its  ori- 
gin therefore,  and  the  sources  of  its  influence,  deserve  to 
be  carefully  examined  by  the  light  which  history  supplies. 
And  to  explain  its  origin,  one  must  digress  a  little  from 
our  proper  theme,  and  go  back  to  the  fountain  of 
modern  legal  ideas  in  the  Roman  law. 

The  Roman  jurists  themselves  fell  into  no  confusion 
between  the  rights  of  a  legal  sovereign  and  the  powers 
of  the  actual  or  (so-called)  '  political '  sovereign,  for  they 
dealt  with  legal  sovereignty  only,  and  dealt  with  it,  not 
as  political  philosophers,  but  simply  as  lawyers.  Under 
the  Republic,  legislative  supremacy  belonged  to  the  peo- 
ple meeting  in  their  comitia,  while  a  certain  control  of 
the  executive  magistrates,  springing  from  the  right  to 
advise,  was  practically  allowed  to  the  Senate.  It  may 
be  argued  that  the  people  could  have  legally  deprived 
the  Senate  of  its  executive  powers,  and  those  who  hold 
this  view  may  if  they  like  hold  that  the  Senate  had  not 
in  technical  strictness  any  sort  of  sovereignty  even  in 
executive  matters1. 

1  As  to  the  Senate's  right  of  legislation,  see  Essay  XIV?  p.  716. 


THE  NATURE  OF  SOVEREICMY  525 

For  our  present  purpose  the  important  point  is  the 
period  of  Justinian,  because  it  was  in  the  form  into 
which  he  condensed  it  that  Roman  law  affected  political 
speculation  after  the  twelfth  century.  Now  Justinian's 
Institutes  and  Digest  still  talk  of  the  Roman  people  as 
possessing  of  right  supreme  legislative  authority,  though 
in  point  of  fact  they  had  not  exercised  it  for  more  than 
five  centuries.  And  in  recognizing  the  Emperor  as  the 
person  who  actually  possesses  legislative  power,  they 
deduce  his  rights  from  a  delegation  by  the  people  of 
their  rights,  and  perhaps,  if  we  are  to  take  their  words 
strictly,  a  delegation  not  in  perpetuity  to  the  imperial 
office,  but  to  each  individual  Emperor  in  succession. 
Like  the  English  of  the  seventeenth  century,  the  Ro- 
mans were  determined  worshippers  of  legality,  and 
sought  carefully  to  obliterate  the  traces  of  revolution, 
so  they  continued  for  a  long  time  to  treat  the  arrange- 
ment by  which  supreme  authority  was  vested  in  a  person 
as  the  holder  of  certain  magistracies  as  a  provisional 
and  temporary  arrangement1. 

It  need  hardly  be  said  that  centuries  before  Justinian's 
day  this  doctrine  of  delegation,  for  a  time  formally  ex- 
pressed in  the  so-called  lex  de  imperio  passed  at  the 
accession  of  each  new  Emperor,  had  become  a  mere 
antiquarian  curiosity,  no  more  representing  the  actual 
facts  than  the  language  of  the  Anglican  liturgy  regard- 
ing the  Crown  represents  the  actual  condition  to-day 
of  the  royal  prerogative  in  England.  Justinian  and  his 
successors  had  in  the  fullest  sense  of  the  word  com- 
plete, unlimited,  and  exclusive  legal  sovereignty ;  and  the 
people  of  old  Rome,  who  are  talked  of  in  the  Digest,  by 
the  lawyers  of  the  second  and  third  centuries,  as  the 
source  of  the  Emperor's  powers,  were  not  in  A.D.  533, 
except  in  a  vague  de  hire  sense,  actual  subjects  of  Jus- 
tinian, being  in  fact  ruled  by  the  Ostrogothic  king 

1  At  one  moment,  after  the  death  of  Caligula,  it  was  proposed  in  the  Senate  to 
set  to  work  anew  the  republican  constitution,  which  had  never  been  formally 
superseded. 


526  THE  NATURE  OF  SOVEREIGNTY 

Athalarich  (grandson  of  the  great  Theodorich).  But  it 
is  noteworthy  that  the  lawyers  also  assigned  to  the  peo- 
ple as  a  whole,  entirely  apart  from  any  political  organiza- 
tion in  any  assembly,  the  right  of  making  law  by  creating 
and  following  a  custom,  together  with  that  of  repealing 
a  customary  law  by  ceasing  to  observe  it,  i.e.  by  desue- 
tude, and  that  they  justify  the  existence  of  such  a  right 
by  comparing  it  with  that  which  the  people  exercise  by 
voting  in  an  assembly.  '  What  difference/  says  Julian, 
writing  under  Hadrian,  '  does  it  make  whether  the  peo- 
ple declares  its  will  by  voting  or  by  its  practice  and  acts, 
seeing  that  the  laws  themselves  bind  us  only  because 
they  have  been  approved  by  the  people  l  ?  ' 

It  need  hardly  be  observed  that  if  Tribonian  and  the 
other  commissioners  employed  by  Justinian  to  condense 
and  arrange  the  old  law  had,  instead  of  inserting  in  their 
compilation  sentences  written  three  or  four  centuries 
before  their  own  time  2,  taken  it  upon  themselves  to  state 
the  doctrine  of  legislative  sovereignty  as  it  existed  in 
their  own  time,  they  would  not  have  used  the  language 
of  the  old  jurists, 'language  which  even  in  the  time  of 
those  jurists  represented  theory  rather  than  fact,  just 
as  Blackstone's  language  about  the  right  of  the  Crown 
to  '  veto  '  legislation  in  England  represents  the  practice 
of  a  period  that  had  ended  sixty  years  before.  But  those 
who  in  the  Middle  Ages  studied  the  texts  of  the  Ro- 
man law  cared  little  and  knew  less  about  Roman  his- 
tory, so  that  the  republican  doctrine  of  popular  sove- 
reignty which  they  found  in  the  Digest  may  have  had 
far  more  authority  in  their  eyes  than  it  had  in  those  of 
the  contemporaries  of  Tribonian,  to  whom  it  was  merely 
a  pretty  antiquarian  fiction. 

These  were   the  legal  notions   of   Sovereignty  with 

1  Dig.  I.  3,  32,  §  i  (cf.  Inst.  i.  2,  n).     In  the  Institutes  of  Justinian  the  Emperor's 
legislative  power,  though  complete,  is  still  grounded  on  a  delegation  formerly  made 
by  the  people. 

2  They  frequently  altered  the  language  of  the  old  jurists  to  make  it  suit  their 
own  time,  so  it  is  the  more  noteworthy  that  the  ancient  terms  have  in  this  instance 
not  been  altered. 


7V//;  NATURE  OF  SOVEREIGNTY  527 

which  the  modern  world  started — the  sharply  outlined 
Sovereignty  of  an  autocratic  Emperor,  and  the  shadowy, 
suspended,  yet  in  a  sense  concurrent  or  at  least  resuma- 
ble,  Sovereignty  of  the  People,  expressed  partly  in  the 
recognition  of  their  right  to  delegate  legislation  to  the 
monarch,  partly  in  their  continued  exercise  of  legislation 
by  Custom. 

But  there  was  also  another  influence,  born  while  the 
autocracy  of  the  early  Emperors  was  passing  from  the 
stage  of  power  de  facto  into  that  of  sovereignty  de  iure, 
which  told  with  no  less  force  upon  the  minds  of  men 
during  the  Middle  Ages,  and  also  in  the  later  days 
when  a  freer  philosophy  began  to  attack  the  problems 
of  political  science.  While  to  the  educated  classes  in 
old  Rome  the  Emperor's  legal  Sovereignty  bore  the 
guise  of  a  devolution  from  that  of  the  People,  his  pro- 
vincial subjects,  who  knew  little  or  nothing  of  these  legal 
theories,  regarded  it  as  the  direct  and  natural  conse- 
quence of  Conquest.  By  the  general,  probably  the 
universal,  law  of  antiquity,  capture  in  war  made  the  cap- 
tured person  a  slave  dc  iure.  Much  more  then  does  con- 
quest carry  the  right  of  legal  command.  Conquest  is 
the  most  direct  and  emphatic  assertion  of  de  facto  supre- 
macy, and  as  the  dc  facto  power  of  the  Romans  covered 
nearly  the  whole  of  the  civilized  world,  maintained  itself 
without  difficulty,  and  acted  on  fixed  principles  in  a  regu- 
lar way,  it  speedily  passed  into  Legal  Right,  a  right  not 
unwillingly  recognized  by  those  to  whom  Roman  power 
meant  Roman  peace.  This  idea  is  happily  expressed 
by  Virgil  in  the  line  applied  to  Augustus — 

'  Victorque  volentes 
Per  populos  dat  iura,' 

while  the  suggestion  of  a  divine  power  encircling  the 
irresistible  conqueror,  an  idea  always  familiar  to  the 
East,  appears  in  the  words 

•  viamque  adfectat  Olympo,' 
which  complete  the  passage. 


528  TEE  NATURE  OF  SOVEREIGNTY 

The  feeling  that  the  power  actually  supreme  has  re- 
ceived divine  sanction  by  being  permitted  to  prevail, 
that  it  has  thereby  become  rightful,  and  that  it  has,  be- 
cause it  is  rightful,  a  claim  to  obedience,  is  clearly  put  in 
writings  which  were  destined,  more  than  any  others,  to 
rule  the  minds  of  men  for  many  centuries  to  come. 

'  Let  every  soul  be  subject  unto  the  higher  powers.  For  there 
is  no  power  but  of  (=  from)  God  :  the  powers  that  be  are  or- 
dained of  God.  Whosoever  therefore  resisteth  the  power,  resist- 
eth  the  ordinance  of  God  :  and  they  that  resist  shall  receive  to 
themselves  damnation  (///.  judgement).  For  rulers  are  not  a 
terror  to  good  works,  but  to  the  evil.  Wilt  thou  then  not  be 
afraid  of  the  power  ?  do  that  which  is  good,  and  thou  shalt  have 
praise  of  the  same;  for  he  is  the  minister  of  God  tothee  for  good. 
But  if  thou  do  that  which  is  evil,  be  afraid  ;  for  he  beareth  not  the 
sword  in  vain:  for  he  is  the  minister  of  God,  a  revenger  to  exe- 
cute wrath  upon  him  that  doeth  evil*  (Rom.  xiii.  1-5). 

'  Submit  yourselves  to  every  ordinance  of  man  for  the  Lord's  sake ; 
whether  it  be  to  the  Emperor,  as  supreme,  or  unto  Governors,  as 
unto  them  that  are  sent  by  him  for  the  punishment  of  evildoers, 
and  for  the  praise  of  them  that  do  well.  For  so  is  the  will  of 
God,  that  with  well-doing  ye  may  put  to  silence  (lit.  bridle)  the 
ignorance  of  foolish  men  '  (i  Pet.  ii.  13-15). 

Here  the  authority  of  the  Emperor  is  not  only  recog- 
nized as  being  de  iure  because  it  exists  and  is  irresisti- 
ble, but  is  deemed,  because  it  exists,  to  have  divine  sanc- 
tion, and  thus  a  religious  claim  on  the  obedience  of  the 
Christian,  while  at  the  same  time,  in  the  reference  to 
the  fact  that  the  power  of  the  magistrate  is  exercised, 
and  is  given  by  God  that  it  be  exercised,  for  good,  there 
is  contained  the  germ  of  the  doctrine  that  the  Power 
may  be  disobeyed  (?  resisted)  when  he  acts  for  evil;  as 
St.  Peter  himself  is  related  to  have  said,  '  We  ought  to 
obey  God  rather  than  men  '  (Acts  v.  29). 

These  and  other  similar  dicta  in  the  New  Testament 
are  not  only  evidence  of  the  sentiments  of  Roman  pro- 
vincials under  the  earlier  Empire,  but  are  also  the  doc- 
trines, delivered  under  the  highest  authority,  from  which 


TI1K  NATURE   OF  80VI-:ifI-:i(L\TY  529 

mediaeval  thought  starts.  How  they  are  worked  out  may 
be  seen  by  examining  the  reasonings  of  Dante  in  his 
De  Monarchic,  or,  still  better,  the  political  theories  of 
St.  Thomas  Aquinas.  From  the  fifth  to  the  sixteenth 
century  whoever  asked  what  was  the  source  of  legal 
Sovereignty,  and  what  the  moral  claim  of  the  Sovereign 
to  the  obedience  of  subjects,  would  have  been  answered 
that  God  had  appointed  certain  powers  to  govern  the 
world,  and  that  it  would  be  a  sin  to  resist  His  ordinance. 
From  the  eleventh  century  onwards  it  was  admitted  in 
Western  Christendom,  though  less  cordially  in  France, 
Spain,  or  England  than  in  Italy  and  Germany,  that  there 
were  two  Legal  Sovereigns,  and  according  to  the  view 
more  generally  held,  each  was  de  iurc  absolute,  the  Pope 
in  spiritual,  the  Emperor  in  temporal  matters.  Both 
Pope  and  Emperor  were  above  all  positive  secular  Law, 
but  subject  to  the  Law  of  Nature  and  the  Law  of  God, 
these  being  virtually  the  same  l.  The  power  of  the  Pope 
came  immediately  from  God,  through  the  institution  of 
Peter  as  chief  bishop.  The  Emperor's  power,  almost 
equally  incontestable,  had  a  double  origin.  According 
to  the  New  Testament,  that  power  came  from  God ;  ac- 
cording to  the  Roman  law,  it  had  been  delegated  by  the 
people,  the  ultimate  source  of  civil  authority.  St. 
Thomas  Aquinas  recognizes  sovereignty  as  originally 
and  primarily  vested  in  the  people,  hardly  less  explicitly 
than  does  the  Declaration  of  Independence.  These  two 
views  were  capable  of  being  combined,  and  the  theory 
of  delegation  did  not  really  reduce  the  Emperor's  au- 
thority, for  there  was  no  actual  people  capable  of  recall- 
ing the  rights  delegated  2.  But  there  was  also  another 
doctrine,  according  to  which  the  Emperor  drew  his 
rights  from  the  Pope,  who  crowned  him,  and  who  as 


1  See  as  to  the  distinction  between  that  part  of  the  Law  of  God  which  is  also  the 
Law  of  Nature  and  other  parts  thereof,  Essay  XI,  p.  594- 

2  Nevertheless  the  followers  of  Arnold  of  Brescia  in  Rome  attempted  to  claim 
for  the  Roman  people  the  right  of  choosing  the  Emperor  ;  while  there  were  others 
who  argued  that  the  true  representatives  of  the  old  Roman  people  were  to  be 
found  in  the  whole  Christian  community  of  the  Empire. 

34 


530  THE  NATURE  OF  SOVEREIGNTY 

spiritual  Sovereign  exercised  a  higher  jurisdiction,  being 
responsible  for  the  welfare  of  the  Emperor's  soul.  After 
the  days  of  Pope  Gregory  the  Ninth  and  the  Emperor 
Frederick  the  Second,  the  doctrine  held  by  nearly  all 
churchmen  of  the  inferiority  of  imperial  to  papal  au- 
thority damaged  the  Emperor's  position.  It  suffered 
still  more  because  after  those  days  the  Emperor  did  not 
rule  de  facto  outside  Germany,  and  not  always  even 
within  it.  Most  jurists,  however,  continued  to  hold  that 
the  rights  of  the  successor  of  Augustus  still  existed 
everywhere  de  inrc,  though  it  was  admitted  that  they 
consisted  only  in  a  sort  of  over-lordship,  which,  always 
ineffective  in  practice,  became  constantly  more  eva- 
nescent in  theory.  Controversy  continued  to  rage  over 
the  limits  to  be  drawn  between  them  and  the  parallel 
sovereignty  of  the  successor  of  Peter ;  and  this  contro- 
versy produced  in  the  fourteenth  century  an  anti-eccle- 
siastical movement  represented  in  literature  by  such  men 
as  Marsilius  of  Padua  and  the  English  Franciscan  Will- 
iam Occam.  In  those  writers  one  finds  the  germs  of  the 
doctrine,  afterwards  famous,  which  refers  the  origin  of 
the  State  to  the  free  consent  of  individual  men. 

In  these  mediaeval  controversies  it  was  assumed 
throughout  and  on  all  sides  that  power  de  facto  must 
follow  Sovereignty  de  hire.  But  this  Sovereignty,  al- 
though above  positive  law,  being  indeed  the  source  of 
such  law,  was  deemed  to  be  held  subject  to  the  Law  of 
Nature,  since  it  is  a  trust  from  God.  However,  as  it 
became  more  and  more  clear  that  the  Emperor  was 
ceasing  to  be  an  effective  ruler,  the  temporal  sovereignty 
of  local  kings  was  fully  admitted,  and  their  rights  were 
based  partly  on  the  providence  of  God,  which  had  al- 
lowed them  de  facto  power,  partly  on  the  feudal  relations 
of  lord  and  vassal,  formed  by  reciprocal  promises  of  pro- 
tection on  one  side,  of  loyal  support  on  the  other. 


THE  NATURE  OF  tf or/;/,' /•:/<;. \  7T  531 

VI.   MODERN  THEORIES  OF  SOVEREIGNTY. 

The  sixteenth  century  brought  with  it  four  momentous 
changes,  any  one  of  which  would  have  alone  been  suffi- 
cient to  shake  the  existing  fabric  of  thought  and  belief : — 

The  Emperor  died  out  as  universal  Sovereign,  and 
became  thenceforth  little  more  than  a  German  monarch, 
with  a  titular  precedence  over  other  princes. 

The  Pope  was  gravely  wounded  by  a  revolt  which 
ended  by  withdrawing  half  Europe  from  his  sway. 

The  feudal  structure  of  society  began  to  crumble 
away,  and  therewith  the  power  of  the  Crown  in  each 
country  grew. 

A  new  spirit  of  inquiry,  sceptical  in  its  tendencies  and 
no  longer  deferential  to  authority,  sprang  up  in  Western 
and  Southern  Europe. 

Thus  that  traditional  doctrine  regarding  the  basis  of 
authority  which  had  been  sufficient  for  the  Middle  Ages 
faded  into  dimness.  Morals  began  to  be  separated  from 
theology,  and  the  outlines  of  political  science  to  emerge 
from  feudal  law.  Men  asked  what  was  the  basis  of  a 
king's  claim  to  be  obeyed.  Did  Might  give  Right?  or 
did  Right  give  Might?  What  was  Right  itself?  Were 
there  any,  and  if  so,  what,  moral  or  religious  limitations 
on  the  powers  of  a  monarch  ?  and  if  so,  did  his  transgres- 
sion of  these  limitations  justify  rebellion  against  him? 
These  were  not  purely  speculative  questions,  because 
the  wars  of  religion,  which  brought  bodies  of  subjects 
into  collision  with  monarchs  of  a  faith  opposed  to  their 
own,  and  the  Pope  into  collision  with  Protestant  mo- 
narchs, raised  issues  of  principle  that  were  momentous, 
not  merely  because  they  troubled  conscientious  minds, 
but  also  because  men  felt  the  need  of  guidance  and 
sought  for  it  in  some  belief  which  could  stimulate  and 
inspire  their  action.  Kings  were  everywhere  extending 
their  functions  and  assuming,  more  than  ever  before,  the 
work  of  legislators,  while  at  the  same  time  subjects  found 
that  new  reasons  had  arisen  for  resisting  kings.  The 


532  THE  NATURE  OF  SOVEREIGNTY 

old  theory  which  deduced  the  rights  of  kings  from  the 
grant  of  authority  divinely  made  to  Peter  and  to  Caesar 
was  outworn.  A  new  explanation  of  the  nature  of  poli- 
tical society  was  needed;  and  from  that  time  onward 
new  theories  of  State  power  began  at  intervals  to 
appear. 

The  particular  form  taken  by  the  problems  which  these 
theories  attempted  to  solve  was  determined  by  the  con- 
ditions of  a  time  in  which  the  coherence  of  nations  and 
states  was  threatened  on  the  one  hand  by  religious  dis- 
cord, and  on  the  other  by  the  claims  of  local  magnates 
as  against  the  Crown.  Hence  the  aim  of  thinkers  was 
to  discover  something  which  would  secure  the  unity  of 
the  State.  They  asked,  What  is  it  that  holds  the  State 
together?  Must  there  not  be  some  supreme  Force  to 
overcome  the  various  forces  that  in  each  State  make  for 
division?  Where  is  that  Force  to  be  found?  Whence 
comes  its  title  to  rule?  In  what  persons  should  it  be 
vested?  Can  it  be,  or  ought  it  to  be,  checked?  These 
thinkers  did  not  approach  such  questions  by  an  induction 
from  the  facts  of  actual  states,  as  we  should  do,  but  were 
guided  partly  by  the  dogmas  of  law  and  theology  which 
the  Middle  Ages  had  bequeathed  to  them,  partly  by  ab- 
stract theories  which  their  advocacy  of  kingly  authority, 
or  papal  claims,  or  popular  rights,  suggested.  And  this 
explains  why  the  Roman  Catholic  writers,  who  might 
have  been  expected  to  maintain  the  absolute  sovereignty 
of  kings  for  the  purpose  of  crushing  out  heresy,  are  often 
found  defending  the  rights  of  the  people,  and  arguing 
for  the  right  to  revolt  against  and  depose  a  heretical 
monarch,  such  as  Henry  the  Eighth,  or  Elizabeth,  who 
had  fallen  away  from  obedience  to  that  ecclesiastical 
authority  whose  rights  came  from  the  grant  to  St. 
Peter. 

The  first  theory,  or  at  least  the  first  which  exerted 
wide  influence,  was  that  of  Bodin,  a  French  jurist,  whose 
book,  in  its  earliest  form,  was  published  in  1576.  In  his 
view  Sovereignty  or  Maiestas  is  the  highest  power  in  a 


THE  NATURE  OF  SOVEREIGNTY  533 

State,  which  is  subject  to  no  laws,  but  is  itself  the  maker 
and  master  of  them.  It  may  reside  either  in  one  person, 
which  is  the  best  and  normal  form,  or  in  a  number  of 
persons.  But  in  either  case  it  is  above  all  law,  incapable 
of  limitation  or  division,  and  having  an  absolute  claim 
to  the  obedience  of  all  its  subjects,  irrespective  of  the 
justice  or  policy  of  its  acts.  Hence  Bodin  rejects  all  so- 
called  limited  monarchies  and  restricted  governments ; 
and  while  he  calls  the  Romano-Germanic  Empire  of  his 
day  not  a  monarchy  but  an  aristocracy,  he  finds  in  the 
French  monarchy  a  pure  autocracy  of  the  proper  type. 
Nevertheless  even  Bodin  admits  that,  in  some  sort  of 
vague  way,  the  Sovereign  is  subject  to  the  Law  of  God 
and  the  Law  of  Nature,  and  conceives  that  he  is  there- 
fore bound  to  perform  any  contracts  he  may  make, 
and  to  respect  the  rights  of  property  and  of  personal 
freedom. 

The  boldest  and  most  logically  complete  counter 
theory  to  that  of  Bodin  came  from  a  younger  contem- 
porary of  his,  the  Calvinist  Johannes  Althusius  (John 
Althus  or  Althaus),  who  was  born  in  1557,  and  died  in 
1638.  Calvin  himself,  and  most  theologians  of  his 
school,  had  returned  to  the  ancient  theocratic  view  that 
civil  power  is  derived  from  God,  dwelling  especially  on 
Romans  viii.  i.  Althusius,  however,  bases  the  govern- 
ment of  the  State  on  a  contract  between  the  people  and 
the  ruler,  and  proceeds  to  assert  the  rights  of  the  former, 
as  the  ultimate  source  of  all  power  and  the  only  true  and 
permanent  depositary  of  sovereignty,  to  depose  the  ruler 
and  resume  the  delegated  power  when  he  has  violated 
his  duties  and  transgressed  the  measure  of  authority 
granted  to  him  1. 

Nearly  a  century  later  than  Bodin  a  scheme  similar 
to  his,  but  more  thorough-going  was  propounded  by 
Thomas  Hobbes  of  Malmesbury.  This  scheme,  con- 

1  A  full  and  instructive  account  of  this  writer's  theories  is  contained  in  the 
admirable  book  of  Professor  Otto  Gierke,  Johannes  Althusius  und die  Entwickel- 
ungder  naturrechtlichen  Staatstheorien^  which  is  a  repertory  of  information  re- 
garding mediaeval  and  post-mediaeval  doctrines  of  the  State. 


534  THE  NATURE  OF  SOVEREIGNTY 

tained  in  the  book  entitled  Leviathan  (and  in  the  treatise 
De  Cive),  cannot  be  appreciated  without  remembering 
the  time  when  the  book  was  written,  and  the  circum- 
stances to  which  it  was  addressed.  So  directly  does  it 
contemplate  them  that  it  may  almost  be  called  a  political 
pamphlet — gigantic,  but  a  pamphlet.  The  Civil  War 
was  raging.  The  supreme  power  in  England  was  dis- 
puted between  the  King  and  the  House  of  Commons. 
Ecclesiastics,  both  Episcopalian  and  Presbyterian,  had 
been  prominent  in  claiming  authority  for  their  religious 
views,  and  the  nation  was  splitting  up  partly  on  politi- 
cal, partly  on  ecclesiastical  lines.  Hobbes  was  equally 
hostile  to  all  ecclesiastics — to  the  Anglican  theory  of 
divine  right,  and  to  the  Presbyterian  theory  of  a  cove- 
nant of  the  people  with  God,  Yet  he  did  not  like  to  base 
society  upon  mere  force,  because  in  that  he  could  find 
no  foundation  for  justice  or  moral  obligation.  Hence 
he  clung  to  the  notion  of  a  contract.  But  it  was  a  new 
kind  of  contract,  which,  not  being  made  with  the  Sove- 
reign, and  'being  itself  irrevocable,  can  give  no  ground 
for  insurrection.  Seeing  disunion  and  confusion  all 
around  him,  and  men  divided  by  the  pretensions  of  jar- 
ring authorities,  Hobbes  conceived  that  the  three  things 
needful  were  (i)  to  find  a  basis  for  power  which  should 
be  permanent  and  inexpugnable,  (2)  to  make  power  one 
and  indivisible,  and  (3)  to  make  it  absolute  and  limitless. 
Perceiving  the  flaws  in  the  theory,  as  old  (in  a  rude  form) 
as  the  thirteenth  century,  which  founded  government  on 
a  compact  between  Sovereign  and  People,  he  bases  his 
Sovereignty  on  a  covenant  of  each  member  of  the  com- 
munity with  every  other  member  to  surrender  all  their 
several  rights  and  powers  into  the  hands  of  one  Person 
(or  Body),  who  thereby  becomes  Sovereign,  but  as 
against  whom,  seeing  that  he  is  not  himself  a  party  to  the 
compact,  it  cannot  be  annulled  by  those  who  made  it, 
because  they  made  it  not  with  him  but  with  one  another. 
His  authority  is  therefore  permanent  and  unlimited ; 
nor  is  he,  like  Bodin's  Sovereign,  bound  by  any  pre- 


THE  NATURE  OF  SOVStUKKflftt  535 

existing  institutions.  As  the  people  have,  by  antici- 
pation, ratified  all  his  acts,  everything  that  he  does, 
however  harsh,  is  just,  and  gives  them  no  ground  for 
complaint.  Indeed  his  power  is  justified  by  the  Law  of 
Nature,  because  the  three  fundamental  Laws  of  Nature 
are  (i)  that  all  men  should  endeavour  to  secure  peace, 
(2)  that  an  individual  man  should  renounce  his  original 
rights  when  the  majority  will  to  do  so,  (3)  that  every 
man  should  observe  the  covenants  which  have  been  made 
by  him,  including  of  course  this  supreme  covenant. 

Though  Hobbes  is  chiefly  concerned  with  establish- 
ing his  Sovereign  dc  hire,  and  making  his  dc  hire  auto- 
cracy complete,  he  does  also  conceive  him  as  enjoying 
complete  de  facto  power.  He  could  indeed  do  no  other- 
wise, for  the  Sovereign  he  describes  is  not  an  actual 
Sovereign.  Hobbes  does  not  profess  to  be  anaylsing 
existing  States,  or  explaining  existing  institutions.  He 
is  presenting  an  ideal  State,  and  arguing  that  mankind 
(and  in  particular  England)  will  never  be  rid  of  their 
present  troubles  until  this  Absolute  Sovereign  of  his 
has  been  installed  with  a  de  hire  title  so  fully  recognized 
that  de  facto  power  will  follow.  The  Civil  War  had  raised 
grave  questions  in  the  dc  hire  sphere,  and  it  was  natural 
to  believe  that,  were  those  questions  out  of  the  way, 
Practical  Mastery  would  accompany  Legal  Sovereignty. 
Nor  was  it  so  strange  as  some  may  fancy  to-day,  that  a 
philosopher  should  doubt  the  possibility  of  securing 
peace  and  order  under  a  monarch  limited  by  law,  or  in- 
deed under  any  government  consisting  of  elements  so 
antagonistic  as  Crown,  Lords,  and  Commons,  were  then 
showing  themselves  to  be.  Hobbes  is  a  thinker  of  singu- 
lar clearness  and  precision.  He  is  cogent  in  argument, 
and  adheres  to  his  main  propositions  with  a  consistency 
greater  than  Bodin  had  shown.  He  sometimes  seems 
more  disputatious  than  philosophical.  But  the  reader 
who  would  judge  him  fairly  must  bear  in  mind  that  he  is 
writing  with  a  view  to  the  circumstances  of  his  own 
time,  delivering  his  blows  now  at  the  Solemn  League 


536  THE  NATURE  OF  SOVEREIGNTY 

and  Covenant,  now  at  the  Levellers,  now  at  the  parlia- 
mentary legalists1. 

Towards  the  end  of  the  following  century  Bentham 
revived  Hobbes's  doctrine  of  Sovereignty,  taking  it  over, 
however,  not  so  much  as  either  an  ideal  conception,  or 
a  suggestion  pointing  a  way  out  of  civil  war,  but  rather 
as  embodying  the  characteristic  features  of  a  normal 
State.  Bentham  was  a  man  of  extraordinary  ingenuity, 
fertility,  and  boldness,  but  he  was  sometimes  heedless ; 
he  lived  before  the  days  of  what  we  call  the  historical 
method,  and  he  had  a  hearty  contempt,  if  not  for  history, 
yet  for  the  legal  institutions  it  had  produced,  which  in- 
deed he  thought  mostly  wrong.  Accordingly,  neither 
the  absolutistic  proclivities  of  Hobbes,  nor  the  inappli- 
cability of  the  Hobbesian  theory  to  the  majority  of  exist- 
ing governments,  deterred  him  from  adopting  a  doctrine 
which  pleased  him  by  its  subjection  of  vague  morality 
to  precise  legality,  and  by  its  vigorous  assertion  of  the 
legal  omnipotence  of  an  authority  which  a  reformer  of 
his  drastic  type  needed  for  the  accomplishment  of  his 
purposes.  Bentham  therefore  had  practical  reasons  for 
his  adhesion  to  the  scheme  of  Hobbes,  far  removed  as 
he  was  from  Hobbes's  notions  of  the  anarchic  State  of 
Nature  and  the  original  covenant.  But  John  Austin, 
Bentham's  disciple,  had  less  excuse  for  the  use  he  made 
of  Hobbes's  speculations.  It  has  been  doubted  whether 
he  understood  Hobbes.  However  this  may  be,  he  would 
seem  to  have  misconceived  the  position  in  which  Hobbes 
stood,  and  to  have  taken  the  latter's  argument  for  an 
absolute  Sovereign  as  the  best  way  of  constituting  au- 
thority in  a  State,  as  a  philosophical  analysis  of  the  na- 
ture and  essence  of  authority  in  a  normal  State.  Hobbes 
was  the  advocate  of  a  scheme  intended  to  cure  actual 
political  evils.  Bentham  was  a  practical  reformer  of 
the  law,  which  certainly  needed  reform.  Austin,  how- 

1  Hobbes  goes  so  far  as  to  wish  to  extinguish  the  right  of  private  judgement, 
and  deems  it  part  of  the  duty  of  the  Sovereign  to  prescribe  opinions  to  his  subjects, 
and  in  particular  to  inculcate  the  true  doctrine  of  Sovereignty. 


Till-    NATURE  OP  SWRBIGNTy  537 


ever,  wrote  as  a  jurist,  professing  to  describe  the  normal 
and  typical  State.  He  was  therefore  bound  to  have 
some  regard  to  facts,  and  to  present  a  theory  of  the 
State  which  would  have  explained  and  correlated  the 
facts,  putting  them  in  their  natural  and  true  connexion. 
Instead  of  this  he  has  given  us  a  theory,  which  is  so 
far  from  being  that  of  the  normal  modern  State,  that  it 
is  applicable  to  only  two  kinds  of  States,  those  with  an 
omnipotent  legislature,  of  which  the  United  Kingdom 
and  the  late  South  African  Republic  are  almost  the  only 
examples,  and  those  with  an  omnipotent  monarch,  of 
which  Russia  and  Montenegro  are  perhaps  the  only  in- 
stances among  civilized  countries.  In  nearly  all  free 
countries,  except  the  United  Kingdom,  legislatures  are 
now  restrained  by  Rigid  constitutions,  so  that  there 
is  no  Sovereign  answering  the  Austinian  definition.  In 
all  Muhamadan  countries  the  monarch  is  legally,  as  well 
as  practically,  restrained  by  his  inability  to  change  the 
Sacred  Law  ;  so  that,  even  in  those  countries  where  des- 
potism seems  at  first  sight  enthroned,  the  definition 
will  not  work.  Even  in  the  application  of  his  own  theory 
to  the  United  Kingdom,  Austin  falls  into  an  error  which 
betrays  its  radical  unsoundness.  Though  he  defines  a 
Sovereign  as  '  the  determinate  superior  who  receives 
habitual  obedience  from  the  bulk  of  a  given  society  '  — 
a  definition  which  belongs  to  the  dc  facto  sphere  and 
suits  a  dc  facto  sovereign,  but  does  not  touch  the  de  iure 
sovereign,  who  may  have  no  means  of  enforcing  obe- 
dience —  still  it  is  plain  that  his  eye  is  chiefly  fixed  on 
law  and  legal  right,  and  that  he  assumes  that  to  the  per- 
son who  enjoys  legal  right  obedience  will  in  fact  be  ren- 
dered. A  Greek  tyrant,  such  as  Agathocles  at  Syracuse, 
received  habitual  obedience  from  the  bulk  of  the  Syra- 
cusans  ;  but  he  was  clearly  not  Sovereign  dc  iure  l.  But 
Austin,  when  he  comes  to  the  United  Kingdom,  finds 

1  Austin  so  far  feels  the  difficulty  of  fitting  his  theory  to  the  case  of  tyrannies  as 
to  imply  that  it  is  to  be  applied  in  settled  States  only.  But  this  is  to  admit  pro 
tanto  the  inadequacy  of  the  theory. 


538  THE  NATURp  OF  SOVEREIGNTY 

his  Sovereign  not  in  Parliament,  that  is  to  say,  in  the 
Great  Council  of  the  Nation  consisting  of  the  Crown,  the 
House  of  Lords,  and  the  House  of  Commons,  but  in 
the  two  former  parts  of  Parliament,  along  with — not  the 
House  of  Commons,  but — the  qualified  electors  of  the 
nation !  This  view  is  opposed  not  only  to  law,  but  also 
to  history,  which  shows  that  the  Great  Council  of  the 
Nation  has  never  been  deemed  to  consist  of  or  include 
'  trustees  '  (as  Austin  calls  them)  for  the  Nation,  but  to 
be  the  Nation  itself,  assembled  for  national  purposes,  its 
members  being  either  in  their  own  right  or,  as  repre- 
sentatives, plenipotentiary,  and  enjoying,  in  contempla- 
tion of  Law — just  as  much  as  did  the  primitive  Folk 
Mot  from  which  Parliament  has  gradually  developed — 
the  plenitude  of  the  nation's  powers.  It  is  moreover 
opposed  to  the  facts  of  the  case,  because  the  electors  of 
the  country  do  not  legislate,  and  have  no  legal  means 
of  legislating.  Their  consent  is  not  required  to  the  va- 
lidity of  the  most  revolutionary  Act  of  Parliament,  as 
the  consent  of  a  majority  of  the  Swiss  electors  and  Can- 
tons is  required  to  a  change  in  the  Constitution  of  th'e 
Helvetic  Confederation.  A  statute  might  conceivably 
be  passed,  of  which  five-sixths  of  the  electors  notoriously 
disapproved,  and  yet  it  would  be  just  as  good  a  statute 
as  one  against  which  no  voice  had  been  raised.  Parlia- 
ment may  even  give  itself  a  competence  which  the  elec- 
tors never  contemplated,  as  it  did  when  it  passed  the 
Septennial  Act. 

Some  of  those  who  have  admitted  that  Bentham's  and 
Austin's  theory  is  historically  indefensible,  have  sought 
to  excuse  its  faults  on  the  ground  that  we  must  test 
theories,  not  by  the  facts  of  nascent  communities,  but 
by  those  which  the  fully-grown  modern  State  presents. 
But  it  is  in  truth  quite  as  inapplicable  to  most  of  these 
modern  States  as  it  is  to  ruder  societies.  Take,  for  in- 
stance, the  Austro-Hungarian  monarchy.  Where,  on 
Austin's  principles,  does  Sovereignty  reside  in  this  dual 
State  ?  The  ultimate  legislative  authority,  that  is  to  say, 


THE  NATURE  OF  SOVEREIGNTY  539 

the  authority  which  receives  commands  from  no  other 
authority,  but  gives  them  to  others,  is  to  be  found  in  the 
so-called  Delegations,  each  composed  of  thirty  mem- 
bers of  the  Hungarian  Parliament,  and  as  many  of  the 
Austrian  Reichsrath.  But  these  are  themselves  chosen 
by  the  two  subordinate  Parliaments,  and  must  therefore 
be  subordinate  to  them,  if  the  British  House  of  Com- 
mons is  subordinate  to  the  British  Electorate.  More- 
over, the  Delegations  can  legislate  on  a  few  prescribed 
subjects  only,  all  other  subjects  belonging  either  to  the 
two  Parliaments  respectively,  or,  in  the  case  of  Austria, 
to  the  legislatures  of  the  several  provinces  (Kronlandc) 
which  make  up  the  Austrian  federation,  and  the  Delega- 
tions derive  their  authority  from  laws  passed  by  the 
Austrian  Reichsrath  and  by  the  Hungarian  Parliament. 
Where  then  does  Sovereignty  reside?  Is  it  in  the  au- 
thorities which  made  the  Constitution?  The  Austrian 
half  of  the  Monarchy  received  its  Constitution  from 
five  Statutes  passed  in  1867,  which  can  be  changed  only 
by  a  two-thirds  majority  in  both  Houses  of  the  Reichs- 
rath; the  Hungarian  half  from  the  laws  of  1848,  which 
the  Emperor  King  agreed  to  bring  into  force  in  1867, 
and  which  apparently  the  Parliament,  with  the  consent 
of  the  Monarch,  can  amend.  There  is  evidently  no  hope 
of  finding  any  one  Sovereign,  in  the  sense  of  the  Aus- 
tinian  definition,  for  this  great  and  powerful  State1. 
Or  take  the  United  States,  whose  Constitution  has  be- 
come a  sort  of  model  for  many  more  recent  confedera- 
tions. Austin  places  Sovereignty  in  the  ultimate  power 
which  can  alter  the  Constitution,  viz.  the  people  (or 
peoples) — I  use  both  phrases  to  avoid  controversy — 
of  the  States.  But  in  the  first  place,  the  people  (or  peo- 
ples) of  the  States  are  not  a  body  habitually  acting. 
They  did  not  act  at  all  from  1810  till  1867.  They  have 

1  An  Austinian  might  perhaps  say  that  the  Austro-Hungarian  monarchy  consists 
of  two  separate  States,  with  no  single  Sovereign.  But  it  is  unquestionably  one 
State  in  the  eye  of  international  law,  and  the  Delegations  have  some  powers  in- 
compatible with  the  existence  of  an  Austinian  sovereign  in  either  half  of  the 
monarchy. 


540  THE  NATURE  OF  SOVEREIGNTY 

not  acted  since  1870.  It  was  because  it  was  impossible 
to  get  them  to  act  that  the  question  of  slavery  proved 
insoluble  by  constitutional  means.  Is  there  not  some- 
thing unreal  and  artificial  in  ascribing  Sovereignty  to  a 
body  which  is  almost  always  in  abeyance?  Moreover, 
the  majorities  by  which  the  Constitution  can  legally  be 
amended  are  very  rarely  attainable ;  and  when  they  are 
not  attainable,  there  would  therefore  seem  to  be  no 
Sovereign  at  all.  And  as  regards  one  point — the  equal 
representation  of  the  States  in  the  Senate,  even  a  three- 
fourths  majority  of  States  can  do  nothing  against  the 
will  of  the  State  or  States  proposed  to  be  affected,  a  fur- 
ther absurd  result  of  the  doctrine.  One  might  pursue  the 
argument  by  examining  the  case  of  other  federations, 
such  as  the  Germanic  Empire,  both  the  old  one  and  the 
new  one,  and  show  to  what  strange  results  these  Aus- 
tinian  principles  would  lead.  But  the  above  illustra- 
tions may  suffice  to  indicate  the  extreme  artificiality  of 
the  doctrine  that  Sovereignty  cannot  be  divided,  as  ear- 
lier illustrations  have  shown  the  inconveniences  of  con- 
founding purely  legal  supremacy  with  actual  mastery. 

Austin  denies  that  there  is  any  difference  between 
a  government  de  iurc  and  one  de  facto,  because  Sove- 
reignty de  iure  must  itself  issue  from  the  Sovereign  him- 
self, and  the  same  person  cannot  be  both  creature  and 
creator.  If  this  means  that  the  British  Parliament  and 
the  Czar,  being  legally  omnipotent  cannot  be  legally 
controlled,  it  is  an  obvious,  but  infertile  remark,  and  it 
conceals  the  really  material  fact  that  both  authorities 
are  obeyed  because  the  long-settled  custom  or  law  of 
the  country  has  formed  the  habit  of  obeying  and  the 
notion  that  it  is  a  duty  to  obey.  If  it  means  that  every 
Sovereign  de  facto  is  also  Sovereign  de  iure,  or  the  con- 
verse, it  is  untrue.  Hobbes  had  a  reason  for  bringing 
in  obedience  as  the  test  of  the  Sovereign.  Bentham  and 
Austin  have  not  this  reason,  for  they  are  in  the  sphere 
of  law,  and  law  is  not  concerned  with  obedience  as  a 
fact.  The  right  of  a  Sovereign  to  be  obeyed  does  not 


THE  XATLA'U   OF  tfOl'A'/.'A'/f/ATy  541 

to  the  lawyer  rest  on  Force,  for  he  assumes  that  wher- 
ever law  exists  it  will  make  itself  prevail. 


VII.    QUESTIONS  REGARDING  SOVEREIGNTY  LIABLE 

TO    BE   CONFOUNDED. 

In  most  of  the  speculations  of  the  school  which  traces 
its  origin  to  Hobbes,  and  indeed  in  some  of  Hobbes' 
critics  also,  there  would  seem  to  be  a  confusion  of  two 
or  more  of  six  different  things,  viz. : — 

1.  The  conception  and  definition  of  legal  supremacy. 

2.  The  conception  of  practical  mastery. 

3.  The  historical  question  as  to  the  origin  of  the  no- 

tion of  Legal  Right. 

4.  The  historical  question  as  to  the  origin  of  organized 

political  communities  in  general,  and  of  the  habit 
of  obedience  therein. 

5.  The  moral  obligation  on  the  members  of  a  State 

to  render  obedience  to  the  authorities  within 
it,  whether  those  authorities  rule  by  law  or  by 
force. 

6.  The  moral  obligations  which  bind  the  holder  of 

power,  whether  de  iure  or  de  facto. 

In  the  hands  of  Bentham,  whom  Austin  follows,  the 
two  last-mentioned  confusions,  which  exercised  men's 
minds  in  the  days  of  Hobbes  and  Locke,  have  disap- 
peared. Bentham  has  seen,  and  has  stated  with  admira- 
ble clearness,  the  line  which  divides  the  province  of 
morality  from  that  of  legal  obligation. 

But  he  has  mixed  up  the  other  four,  and  especially 
the  first  two — for  it  is  rather  by  implication  than  by  ex- 
press words  that  his  writings  cover  the  questions  of 
the  historical  origin  of  Right  and  of  the  State — in  a  way 
that  has  clouded  the  mind  of  many  a  student  since  his 
time,  and  has  in  particular  produced  two  capital  errors, 
that  of  regarding  Law  as  primarily  and  normally  a  com- 
mand, which  it  certainly  was  not  at  first  and  is  only 
partially  now,  and  that  of  denying  the  legal  quality  of 


542  THE  NATURE  OF  SOVEREIGNTY 

Customary  Law,  which  has  been  in  all  countries  the 
most  fertile,  and  is  still  in  some  practically  the  only 
source  of  law.  This  confusion  seems  to  have  been  due 
mainly  to  two  causes.  One  is  the  omission  of  the  fol- 
lowers of  Hobbes  to  pay  any  regard  to  the  history  of 
States  and  Governments,  and  to  perceive  that  in  many 
stages  of  their  growth  the  definitions  which  may  suit  a 
normal  modern  State  are  quite  inapplicable.  The  other 
is  the  attempt  to  find  concise  and  summary  definitions 
and  descriptions  which  will  suit  all  modern  States  gene- 
rally, whatever  their  diversities  from  one  another,  or 
(to  put  the  same  thing  in  a  different  form)  the  habit  of 
arbitrarily  assuming  one  kind  of  modern  State  to  be  the 
normal  State,  even  though  the  trend  of  recent  tendency 
may  be  away  from  that  type.  The  remark  of  Bacon, 
that  men  are  prone  to  assume  a  greater  uniformity  in 
Nature  than  in  fact  exists,  and  to  conceal  real  distinc- 
tions under  identical  nomenclature,  finds  an  application 
in  the  moral  and  political  sciences  as  well  as  in  the 
sciences  we  call  physical.  This  besetting  sin  of  those 
who  frame  logical  classifications  upon  the  basis  of  ab- 
stract notions  has  led  the  so-called  Analytic  School  of 
jurists  sometimes  to  ignore  the  most  material  facts, 
sometimes  to  twist  their  definitions  into  a  sense  far 
removed  from  the  natural  meaning  of  the  words  they 
use. 

The  truth  seems  to  be  that  the  difficulties  which  have 
been  supposed  to  surround  the  subject  of  Sovereignty 
are  largely  factitious  difficulties,  and  spring  from  the  at- 
tempts made  to  answer  questions  essentially  different 
by  the  same  terms.  Had  the  qualifying  terms  de  iure  or 
de  facto  been  added  every  time  the  word  '  Sovereignty ' 
was  used,  most  of  these  difficulties  would  have  dis- 
appeared. If  we  take  the  six  questions  just  stated,  and 
examine  each  by  itself,  there  will  be  nowadays  no  great 
conflict  of  opinion  as  to  the  answer  which  each  ought  to 
receive. 

Questions   I   and  2  have  been  already  dealt  with. 


THE  NATURE  OF  SOVEREIGNTY  543 

When  the  qualification  dc  hire  or  dc  facto,  as  the  case 
may  be,  is  in  each  case  added,  there  need  be  no  more 
mystery  about  either  of  them. 

As  regards  3  and  4,  i.e.  the  origin  of  political  power, 
whether  de  facto  or  dc  hire,  the  reply  of  history  is  un- 
equivocal. There  never  was  and  never  could  have  been 
any  social  contract  in  the  sense  either  of  Hobbes  or  of 
Rousseau  or  of  any  of  the  other  philosophers  who  have 
discovered  in  such  a  fact  the  foundation  of  organized 
society.  Political  communities,  as  every  one  will  now 
admit,  grew  up  of  themselves  under  the  influence  of  the 
needs  of  common  defence,  of  religious  belief,  of  habit, 
of  the  aggregative  and  imitative  instincts  of  mankind. 
Law  grew  out  of  custom,  and  showed  itself  first,  in  most 
races,  in  the  form  of  rules  for  the  settlement  of  disputes, 
whether  regarding  property  or  regarding  the  compensa- 
tion to  be  made  for  murder  or  other  personal  injury. 
It  cannot  be  said  that  (as  a  general  rule)  authority  based 
on  physical  force,  the  form  in  which  Sovereignty  de  facto 
is  commonly  supposed  to  have  begun,  preceded  autho- 
rity de  iurc,  for  the  two  have  usually  grown  up  together, 
custom  having  in  it  an  element  of  fear  and  an  element 
of  moral  deference;  and'in  this  growth  physical  force  has 
played  no  such  predominant  part  as  the  school  of  Hobbes 
and  Austin  assign  to  it.  Just  as  in  the  case  of  each  in- 
dividual man  the  most  important,  if  not  the  largest 
part  of  his  knowledge  is  that  which  he  acquired  in  the 
semi-conscious  years  of  childhood,  so  the  chief  part  of 
the  work  of  forming  political  societies  was  done  by 
tribes  and  small  city  communities  before  they  began  to 
be  conscious  that  they  were  forming  institutions  under 
which  to  live:  and  the  leading  conceptions  of  law  and 
procedure  were  definite  and  potent  before  the  begin- 
nings of  that  direct  legislation  by  a  Sovereign  which  is 
now  represented  as  the  normal  action  of  an  organized 
political  body.  Nor  is  the  power  of  the  community  as 
a  whole,  apart  from  its  titular  Sovereign  or  its  represen- 
tative organs,  extinct  to-day.  It  survives  in  the  vague 


544  THE  NATURE  OF  SOVEREIGNTY 

but  irresistible  force  of  public  opinion  which  controls  all 
those  organs. 

When  we  come  to  the  two  last  of  the  above  questions 
(5  and  6)  we  find  that  a  sharp  distinction  between  Legal 
Sovereignty  and  Practical  Mastery  makes  it  easier  to 
solve  the  problems  they  raise.  Obedience  to  a  ruler 
who  is  Sovereign  only  de  facto  and  not  also  dc  iurc  is  not 
now  deemed  a  duty,  unless  the  ruler  de  iurc  be  powerless, 
or  cannot  be  ascertained^  in  which  cases  it  may  be  for  the 
general  good  that  the  actual  holder  of  power,  even  un- 
lawfully obtained,  should  be  supported  as  against  an- 
archy or  the  prospect  of  civil  war.  But  to  our  minds 
power  de  facto,  apart  from  legal  sanction,  carries  no  title 
to  respect.  When  it  is  abused,  the  good  citizen  not  only 
may  but  ought  to  resist  it. 

With  the  Sovereign  de  hire  the  case  is  different.  He 
has  a  prima  facie  claim  to  obedience,  which  can  be  re- 
butted or  disregarded  only  in  one  of  three  events,  (a) 
if  he  has  lost  de  facto  power,  and  is  therefore  unable  to 
perform  a  Sovereign's  duties,  (b)  if  he  has,  in  a  State 
where  his  powers  are  limited,  himself  so  gravely  trans- 
gressed the  constitution  or  laws  as  either  legally  or 
morally  to  forfeit  his  Sovereignty,  (c)  if  in  a  State  where 
his  powers  are  not  limited  by  the  Constitution  he  has 
so  abused  his  legal  power  as  to  become  in  fact  a  Tyrant, 
a  foe  to  the  objects  of  peace,  security,  and  justice,  for 
which  government  exists.  In  each  of  these  cases  it 
would  be  now  generally  held  that  the  citizen  is  absolved 
from  his  allegiance,  and  that  the  sacred  right  of  insur- 
rection which  the  French  of  the  Revolution  and  their 
friend  Jefferson  so  highly  prized  must  come  into  play. 
In  case  (b)  the  proper  course  would  seem  to  be  to  resist 
the  de  iure  Sovereign  by  constitutional  means,  so  far  as 
they  will  go,  and  only  in  the  last  resort  by  force.  If 
his  transgressions  have  gone  so  far  as  to  work  forfeiture 
of  his  legal  rights,  he  is  of  course  no  longer  Sovereign 
de  iure.  In  case  (c),  where  no  constitutional  remedy 
exists,  the  formerly  de  iure  ruler,  since  he  has  made 


Tin:  NATURE  or  SOVBREIGXTf  545 

himself  a  mere  Tyrant  or  ruler  against  law,  has  created 
a  state  of  war  between  himself  and  the  citizens,  and  oppo- 
sition to  him  becomes  (as  in  the  case  of  the  mere  de  facto 
tyrant)  a  duty  which  is  of  stronger  or  weaker  obligation 
according  to  the  greater  or  less  enormity  of  his  offences, 
and  the  greater  or  less  prospect  of  success  in  such 
opposition. 

As  respects  the  moral  restraints  by  which  the  Sove- 
reign, whether  dc  facto  or  dc  iurc,  ought  to  hold  himself 
bound,  few  will  now  dispute  that  they  are  substantially 
the  same  as  those  which  bind  an  individual  man  in  the 
ordinary  relations  of  human  life.  Each  must  use  his 
power  in  accordance  with  the  general  principles  of  jus- 
tice and  honour,  regarding  actual  power  as  a  trust  from 
Divine  Providence,  and  legal  power  as  a  trust  from  the 
community  also.  Only  in  a  single  point  would  it  seem 
that  there  may  be  a  difference,  though  one  whose  limits 
are  difficult  to  fix  in  practice,  between  the  moral  duty 
of  a  Sovereign  and  that  of  an  individual  good  citizen. 
Both  are  equally  bound  to  strict  justice,  strict  good 
faith,  strict  avoidance  of  cruelty,  or  even  unnecessary 
harshness.  But  while  the  individual  ought  often  to  be 
not  merely  just  but  also  generous,  since  it  is  only  his 
own  resources  which  generosity  will  impair,  it  is  sug- 
gested that  the  Sovereign  has  no  right  to  be  generous 
out  of  the  resources  of  the  community  for  which  he  is 
only  a  trustee.  Similarly,  while  the  good  man  may  risk 
his  own  life  to  save  the  lives  of  others,  the  ruler  must 
not  risk  the  life  of  the  community,  because  he  has  not 
been  entrusted  with  any  such  power.  To  this  it  has  been 
answered  that  the  Sovereign  is  entitled  to  assume  that 
the  community  ought  to  desire  and  will  desire  that  its 
powers  should  be  exercised  in  the  best  and  highest  spirit 
for  the  good  of  its  members  and  of  the  world,  and  that 
he  may  upon  this  assumption  do  everything  which  a 
high-minded  community  would  do  were  it  consulted. 
The  question,  though  seldom  a  practical  one,  is  both  in- 
teresting and  difficult,  for  even  if  the  analogy  of  trustee- 
35 


546  THE  NATURE  OF  SOVEREIGNTY 

ship  be  admitted,  there  is  room  for  much  controversy  as 
to  the  application  of  the  principle  in  each  particular  case. 

Some  few  publicists  have  argued  that  the  Sovereign 
Power  in  a  State  is  entirely  discharged  from  all  moral 
obligations  when  it  is  a  question  of  preserving  the  exist- 
ence of  the  State  itself,  and  that  violence,  injustice,  and 
bad  faith  then  become  legitimate  expedients.  In  reply 
to  such  a  detestable  doctrine,  it  is  enough  to  observe 
(first)  that  as  the  Sovereign  would  be  himself  the  judge 
of  what  does  involve  the  life  of  the  State,  he  would  be 
sure  to  abuse  his  freedom  from  moral  ties  in  cases  where 
the  supposed  justification  did  not  really  arise,  and  that 
thus  all  confidence  of  one  nation  in  the  good  faith  of  an- 
other would  be  destroyed,  and  (secondly)  that  the  argu- 
ment must  go  so  far  as  to  put  the  claim  of  a  State  to 
preserve  its  collective  existence  higher  than  that  of  the 
individual  to  preserve  himself  from  death,  for  no  one 
will  contend  that  an  individual  is  justified  in  killing  an- 
other man  (except  of  course  in  self-defence)  or  bringing 
a  false  charge  against  him,  for  the  sake  of  saving  his  own 
life. 

This  question  need  not  be  pursued,  because  it  lies 
rather  outside  the  particular  subject  with  which  we  are 
here  concerned.  But  a  few  words  may  fitly  be  said  re- 
garding the  bearing  of  the  distinction  between  that  which 
exists  de  iure  and  that  which  exists  de  facto  on  the  ques- 
tions that  have  arisen  regarding  Sovereignty  in  the 
international  sphere. 

VIII.    SOVEREIGNTY  IN  INTERNATIONAL  RELATIONS. 

In  that  sphere  there  is  no  Law,  in  the  strict  modern 
sense, because  no  superior  authority  capable  of  adjudicat- 
ing on  disputes  and  enforcing  rules,  and  therefore  we  can- 
not speak  of  the  Sovereignty  of  one  State  over  another 
State  in  the  same  sense  in  which  a  Person  or  Body  within 
a  State  may  be  called  Legally  Supreme  over  the  subjects. 
Nevertheless,  where  some  legal  tie  has  been  created  be- 


NATURE   <>F  SOVEREIGNTY  547 

tween  two  or  more  States,  placing  one  in  a  lower  posi- 
tion, we  may  say  that  inferiority  exists  dc  iurc,  while  if 
there  is  merely  an  actual  and  continuing  disposition  of 
the  weaker  one  to  comply  with  the  wishes  of  the  stronger, 
there  is  inferiority  dc  facto.  Where  the  laws  made  by 
the  legislative  authority  of  one  State  directly  bind  the 
subjects  of  another  State,  the  latter  State  cannot  be 
called  in  any  sense  Sovereign.  But  between  this  case 
and  that  of  absolute  independence  there  are  several 
grades  of  what  may  be  called  semi-Sovereignty,  or  (per- 
haps more  correctly)  imperfect  Sovereignty.  The  de- 
pendent State,  though  not  amenable  to  the  laws  or  courts 
of  the  superior  one,  may  have  no  right  to  hold  diplomatic 
relations  with  other  States,  or  may,  though  entitled  to 
send  and  receive  envoys,  have  bound  itself  by  a  treaty 
with  the  superior  State  to  submit  for  the  approval  of 
the  latter  any  treaty  it  may  conclude.  Or  again,  it  may 
have  formally  accepted  the  protection  of  the  superior 
State,  or  have  undertaken  to  receive  its  executive  head 
from  the  latter,  or  to  pay  tribute  to  the  latter.  In  all 
such  cases  the  tie  duly  formed  between  the  superior  and 
inferior  State,  and  notified  to  other  States,  is  a  fact  of 
high  diplomatic  moment  in  determining  the  interna- 
tional status  of  the  inferior  State.  Other  States  are 
bound  by  international  usage  to  take  note  of  the  fact, 
and  for  one  of  them  to  attempt  to  send  an  ambassador 
to,  or  make  a  treaty  with,  an  inferior  State  which  had 
bound  itself  to  a  superior  State  in  the  way  above  indi- 
cated, would  constitute  a  grave  breach  of  comity — 
would  be  treated  .as  what  diplomatists  call '  an  unfriendly 
act.'  Although,  therefore,  there  is  no  Law,  in  the  strict 
sense  of  the  word,  binding  these  inferior  States,  but  only 
a  Contract,  still  they  may  appropriately  be  said  to  be 
dc  iure  dependent,  or  imperfectly  sovereign.  The  world 
is  full  of  them.  There  are  a  great  many  in  India,  bound 
to  the  British  Crown  by  engagements  which  make  them 
more  or  less  subject  to  British  control.  Rumania  and 
Servia  were  formerly  in  this  position.  There  is  one  left 


548  THE  NATURE   OF  SOVEREIGNTY 

in  South-Eastern  Europe,  Bulgaria,  although  the  tie 
binding  it  to  the  Turkish  Sultan  is  wearing  very  thin1. 
Bulgaria  is  not  precluded  from  sending  envoys  and  mak- 
ing treaties.  There  is  one  in  North  Africa — Tunis — 
which  is  now,  in  all  but  name  and  legal  intendment,  a 
province  of  France.  Another  African  case,  that  of  the 
late  South  African  Republic,  which,  though  it  could 
accredit  and  receive  envoys,  was  liable  to  have  any  treaty 
made  by  it  (except  with  its  neighbour  republic)  disap- 
proved by  Great  Britain,  has  given  rise  to  much  contro- 
versy. Probably  it  should  not  have  been  called  either  an 
internationally  Sovereign  State,  or  a  Dependent  State, 
but  rather  a  State  dependent  for  one  particular  purpose 
and  independent  for  others.  The  position  of  Egypt — 
which  is  de  iure  part  of  the  Ottoman  Empire  for  some 
purposes,  is  also  de  iurc  (for  certain  other  purposes) 
under  the  control  of  six  European  Powers,  and  is  dc  facto 
under  the  control  of  one  of  those  six — is  a  very  peculiar 
one.  The  varieties  of  relation  in  which  one  State  may 
legally  stand  to  another  are  indeed  endless,  and  elude 
any  broad  classification. 

Quite  different  from  these  cases  are  those  in  which 
a  State,  though  practically  dependent  on  another  State, 
has  contracted  no  public  engagement  which  affects  her 
theoretical  independence.  In  such  cases,  third  parties 
(i.e.  States)  are  not  prima  facie  bound  (by  international 
usage  and  comity)  to  pay  any  regard  to  the  fact  that  the 
inferior  State  is  de  facto  dependent.  They  may  properly 
treat  it  as  being  completely  Sovereign.  But  just  as  there 
are  some  cases  in  which  a  de  facto  Sovereign  becomes 
morally  entitled  to  obedience  from  the  citizens  of  a  com- 
munity, so  there  are  some  extreme  cases  in  which  a 
State,  while  technically  independent,  is  notoriously  so 
much  de  facto  under  the  protection  and  control  of  a 
stronger  State  that  it  would  be  improper  for  third  parties 

1  The  position  of  Bosnia,  occupied  by  Austria  but  not  yet  formally  severed  from 
the  Ottoman  Empire,  is  somewhat  different.  It  may  be  compared  with  that  of 
Lothian  in  the  hands  of  the  king-  of  Scots  about  the  end  of  the  tenth  century,  though 
in  that  case  there  may  have  been  a  quasi-feudal  relation. 


THE  NATURE  OF  SOVEREIGNTY  549 

to  ignore  the  actual  relation.  England  (strictly  speak- 
ing) has  no  legal  control  over  Afghanistan  or  Nepal, 
and  had  none  over  independent  Burma  down  to  1885, 
but  Burma  was  annexed  because  it  toyed  with  France, 
and  any  negotiations  by  a  third  power  with  Afghanistan 
or  Nepal  would  be  resented  by  England.  Persia  may 
possibly  sink  into  a  similar  position  as  regards  Russia. 

IX.   SOVEREIGNTY  IN  A  FEDERATION. 

One  peculiar  case  remains  to  be  mentioned  in  which 
theoretical  views  of  the  nature  of  Sovereignty,  and  a 
certain  tendency  to  confuse  the  spheres  of  de  iure  and 
dc  facto,  produce  difficulties.  It  is  the  case  of  communi- 
ties uniting  themselves  in  a  Federation,  and  resigning 
to  it  a  part  of  their  self-government,  and  either  a  part 
or  the  whole  of  their  Sovereignty.  There  have  been 
several  such  instances,  but  it  will  be  sufficient  to  examine 
one. 

When  the  thirteen  semi-independent  States — semi- 
independent  because  they  had  parted  with  some  of  their 
powers  by  the  instrument  of  confederation  of  1776 — that 
lay  along  the  Atlantic  coast  of  North  America  adopted 
(between  1787  and  1791)  the  newly  drafted  Constitu- 
tion of  the  Union,  they  neither  expressly  reserved  nor 
expressly  disclaimed  the  right  to  withdraw  from  it  and 
resume  their  previous  condition.  Questions  presently 
arose  as  to  the  right  of  a  State  to  treat  as  null  any  act 
of  the  Federal  legislature  which  she  deemed  to  go  be- 
yond the  powers  conferred  upon  it  by  the  Constitution, 
and  ultimately  as  to  her  right  to  withdraw  altogether 
from  the  Union.  In  the  discussions  of  these  points 
much  stress  was  laid  on  the  sovereignty  which  the  seve- 
ral States  had  (so  it  was  urged)  originally  possessed, 
which  they  had  never  in  terms  renounced,  and  which 
the  Eleventh  Amendment  to  the  Federal  Constitution 
had,  when  it  declared  that  no  State  could  be  sued  by  a 
private  person,  virtually  admitted. 


550  THE  NATURE   OF  SOVEREIGNTY 

The  earlier  statesmen,  such  as  Hamilton  and  Madison, 
held  that  Sovereignty  was  by  the  Constitution  divided 
between  the  Nation,  acting  through  Congress  and  the 
President,  and  the  States.  This  was  all  the  more  natural, 
because  both  the  National  and  the  State  organs  of  gov- 
ernment were  agents  of  the  people,  from  whom  it  was  ad- 
mitted that  all  powers  had  come,  and  in  whom,  there- 
fore, ultimate  Sovereignty  must  lie,  though  whether  in 
the  people  as  one  whole,  or  in  the  several  peoples  of 
the  several  States,  was  another  question.  But  the  pub- 
licists of  the  next  generation,  who  on  each  side  led  the 
contest  over  slavery,  refused  to  acquiesce  in  any  doc- 
trine of  division.  Like  Bodin,  Hobbes,  Bentham,  and 
other  Europeans,  they  proclaimed  Sovereignty  indivisi- 
ble ;  but  while  the  Northern  men  found  it  in  the  Nation 
as  a  whole,  the  Southerners,  led  by  Calhoun,  insisted 
that  it  remained  in  the  several  States,  suspended  or  tem- 
porarily qualified,  but  capable  of  resuming  its  former 
proportions  in  each  State  whenever  that  State  should 
quit  the  Union. 

On  these  questions,  which  were  treated  as  questions 
of  pure  law,  there  was  immense  debate — acute,  learned, 
passionate,  and  such  debate  might  have  gone  on  for 
ever;  for  each  side  had  a  perfectly  arguable  case,  the 
point  being  one  which  the  Constitution  had  (perhaps 
intentionally)  evaded.  The  term  Sovereignty  acquired 
to  the  disputants  a  sort  of  mystic  meaning,  and  many 
forgot  that  while  the  respective  rights  of  the  nation  and 
the  States  were  de  lure  the  same  in  1860  as  they  had  been 
in  1791,  a  new  state  of  things  had  in  fact  grown  up, 
which  the  old  de  iure  conception  did  not  suit.  Contro- 
versy there  would  in  any  case  have  been,  but  the  contro- 
versy was  greatly  darkened  by  the  metaphysical  cha- 
racter which  the  use  of  the  abstract  term  Sovereignty 
imparted  to  it;  and  which  helped  to  conceal  the  mo- 
mentous change  which  the  political  conditions  of  the 
country  had  undergone. 

The  moral  of  a  concrete  case  like  this  is  the  same  as 


THE  NATURE  OF  SOVEREIGNTY  551 

that  suggested  by  a  study  of  the  errors  of  the  modern 
followers  of  Hobbes.  Hobbes  seems  to  assume  that 
his  Sovereign  dc  in  re  will  be  also  Sovereign  dc  facto. 
Austin  cannot  admit  any  one  to  be  a  Sovereign  who  is 
not  so  both  dc  iure  and  dc  facto.  The  lawyers  on  both 
sides  in  America  grew  so  hot  over  their  legal  contro- 
versy as  to  forget  the  incompetence  of  law  to  deal  with 
certain  classes  of  questions.  They  ignored  history,  and 
got  too  far  away  from  facts.  In  the  sphere  of  pure  law 
political  facts  need  not  be  regarded,  for  Law  assumes 
that  while  it  remains  law  its  decisions  will  be  accepted. 
But  when  it  is  attempted  to  transfer  the  principles  and 
conclusions  of  law  to  the  sphere  of  controversies  in 
which  not  only  vast  interests,  but  also  violent  passions 
are  engaged,  there  is  danger  that  the  law  may  turn  out 
not  to  have  been  made  for  the  new  facts  and  not  to  be 
capable  of  dealing  with  them,  so  that  efforts  to  apply  it 
to  them  will  not  carry  the  full  moral  weight  which  law 
ought  to  exert.  That  each  party  should  have  a  plausible 
legal  case  makes  the  risk  of  conflict  greater,  because 
men  think  themselves  justified  in  resorting  to  force  to 
defend  their  legal  case,  whereas  if  they  left  law  out  of 
the  matter,  they  might  be  more  willing  to  consider  their 
chances  of  practical  success,  and  therefore  more  ready 
to  accept  a  compromise.  What  is  deemed  a  good  case 
dc  inre  has  sometimes  proved  a  temptation  to  a  weak 
State  to  resist  when  it  had  better  have  agreed  with  its 
adversary,  or  a  temptation  to  a  strong  State  to  abuse 
its  strength,  whether  by  resorting  to  force  when  it 
ought  to  have  accepted  arbitration,  or  by  expending 
on  the  annihilation  of  its  opponent  an  amount  of 
blood  and  wealth  out  of  all  proportion  to  the  issues 
involved. 

Knots  which  the  law  cannot  untie  may  have  to  be 
ait  by  the  sword.  So  it  happened  in  the  case  of  the 
United  States.  The  Supreme  Court  tried  its  hand  and 
failed.  The  only  legislative  authority  which  could  have 
been  invoked  to  settle  the  dispute  by  constitutional 


552  THE  NATURE  OF  SOVEREIGNTY 

means  was  one  consisting  of  a  two-thirds  majority  of 
each  House  and  a  three-fourths  majority  of  the  States 
(acting  either  through  Conventions  or  through  their 
legislatures),  such  being  the  only  authority  capable  of 
amending  the  Constitution.  It  was  practically  impos- 
sible to  obtain  a  majority  of  three-fourths  of  the  States 
for  an  amendment  dealing  with  slavery  or  with  State 
sovereignty.  The  resources  of  law  being  exhausted,  the 
question  of  Sovereignty  was  tried  de  facto  by  a  war  which 
lasted  nearly  four  years,  and  in  which  about  a  million  of 
men  are  supposed  to  have  perished. 


X.    CONCLUSION. 

Upon  a  review  of  the  long  and,  on  the  whole,  un- 
profitable controversies  that  have  been  waged  regarding 
the  abstract  nature  of  Sovereignty,  one  is  struck  by  the 
fact  that  with  the  possible  exception  of  the  German 
philosophers  from  Kant  to  Hegel,  these  controversies 
have  been  at  bottom  political  rather  than  philosophical, 
each  theory  having  been  prompted  by  the  wish  to  get 
a  speculative  basis  for  a  practical  propaganda.  It  was 
so  when  the  Pope  and  the  Emperor  were  at  war  in  the 
days  after  Gregory  the  Ninth  and  Boniface  the  Eighth. 
It  was  so  in  the  days  of  Bodin,  of  Althaus,  of  Hobbes, 
of  Locke,  of  Rousseau,  of  De  Maistre  and  Haller.  The 
Romans  and  the  English  have  contributed  less  to  these 
controversies  than  most  other  nations,  not  only  because 
both  have  been  eminently  practical  as  well  as  eminently 
legal-minded  peoples,  but  because  both  had  the  good 
fortune  to  obtain  a  clear  de  iure  Sovereign,  who  was  for 
some  centuries  in  Rome,  and  has  been  for  some  cen- 
turies in  England  (with  short  transitional  periods,  in 
both  cases,  of  uncertainty),  the  undisputed  possessor 
not  only  of  de  iure,  but  also  of  de  facto  power.  Save 
during  a  few  intervals  of  conflict,  all  that  we  English 
have  needed  to  know  about  Sovereignty  is  where  the 


THE  NATURE  OF  SOVEREIGNTY  553 

law  places  it l.  We  were  beginning  to  know  this  as  far 
back  as  the  thirteenth  century;  and  just  at  the  time 
when  Bodin's  book  opens  the  long  disputations  of  post- 
mediaeval  theorists,  Sir  Thomas  Smith  set  forth  the 
legal  supremacy  of  Parliament  in  words  to  whose  clear- 
ness and  amplitude  nothing  can  be  added  to-day  2.  In 
the  seventeenth  century  a  struggle  which  arose  over  the 
respective  rights  of  the  component  parts  of  this  com- 
posite Sovereign  was  settled  de  facto  by  a  civil  war  and 
by  a  revolution,  which  negatived  any  right  of  separate 
legislation  claimed  for  the  Crown  and  placed  the  judi- 
ciary in  a  position  of  independence.  Yet  the  change 
then  made  de  facto  was  so  far  from  being  fully  expressed 
dc  hire  that  whoever  should  to-day  study  legal  texts  only, 
might  conclude  that  the  Crown  and  the  House  of  Lords 
are  just  as  important  members  of  the  composite  Sove- 
reign as  is  the  House  of  Commons.  Since  1689  de  iure 
Sovereignty  has  coincided  with  de  facto  obedience.  The 
idea  that  power  de  facto  naturally  goes  along  with  au- 
thority de  iure  has  grown  to  be  almost  a  part  of  an  Eng- 
lishman's mental  constitution,  a  happy  result  whereof  let 
us  all  say — Esto  pcrpetua.  France  and  Germany  have 
been  less  fortunate  in  their  history,  and  consequently 
more  prolific  in  their  theories.  Yet  with  the  exception 
of  a  few  belated  defenders  of  the  old  doctrine  of  '  divine 
right/  Frenchmen  are  now  agreed  as  to  the  source  of 
all  political  power,  and  the  Germans,  equally  agreed 
upon  this  point,  are  chiefly  occupied  in  debating 
where,  according  to  the  Constitution  of  their  Em- 

J  Indeed  the  recognition  of  the  Great  Council  of  the  nation  as  the  chief  power 
in  the  State  is  still  older:  though  its  exclusive  supremacy,  i.e.  its  right  to  interfere 
with  certain  branches  of  the  prerogative  of  one  part  of  it,  the  Crown,  remained 
long  contested. 

3  In  his  Commonwealth  of  England  (published  in  1583) :  '  All  that  ever  the  peo- 
ple of  Rome  might  do,  either  Centuriatis  comitiis  or  TriouHs,  the  same  may  be 
done  by  the  Parliament  of  England,  which  representeth  and  hath  the  whole  power 
of  the  realm,  both  the  head  and  body.  For  every  Englishman  is  intended  to  be 
there  present,  either  in  person  or  by  procuration  and  attorney,  of  what  pre-emi- 
nence, state,  dignity,  or  quality  soever  he  be,  from  the  prince  (be  he  King  or 
Queen)  to  the  lowest  person  of  England,  and  the  consent  of  the  Parliament  is  taken 
to  be  every  man's  consent.'  See  an  article  by  Sir  F.  Pollock  in  Harvard  Law 
Review  for  January,  1895,  and  his  First  Book  of  Jurisprudence,  p.  247. 


554  THE  NATURE  OF  SOVEREIGNTY 

pire,   sovereign  power   is   to   be   deemed   in   point   of 
theory  to  reside. 

After  long  wanderings  through  many  fields  of  specu- 
lation, as  well  as  many  a  hard-fought  fight,  all  civilized 
nations  have  come  back  to  the  point  from  which  the 
Romans  started  twenty  centuries  ago.  All  hold,  as  did 
the  Romans,  that  sovereign  power  comes  in  the  last 
resort  from  the  people,  and  that  whoever  exercises  it  in 
a  State,  exercises  it  by  delegation  from  the  people.  All 
also  hold  that  in  the  internal  affairs  of  a  State,  power 
legally  sovereign — even  if  the  Constitution  subjects  it 
to  no  limitation — ought  to  be  exercised  under  those 
moral  restraints  which  are  expected  from  the  enlight- 
ened opinion  of  the  best  citizens,  and  which  earlier 
thinkers  recognized  under  the  name  of  Natural  Law. 
The  sphere  in  which  no  Sovereignty  de  iure  exists,  that 
of  international  relations,  where  all  power  is  de  facto 
only,  is  also  the  sphere  in  which  morality  has  made  least 
progress,  and  in  which  justice  and  honour  are  least 
regarded. 

NOTE. 

The  above  article  was  written,  now  a  good  many  years 
ago  (though  it  has  been  revised  subsequently),  when  I 
had  not  before  me  some  writings  on  the  subject  of 
Sovereignty,  to  which  a  brief  reference  ought  to  be 
made.  First  among  them  comes  Sir  H.  Maine.  Two 
lectures  (in  the  volume  entitled  the  Early  History  of 
Institutions)  contain  an  ingenious  criticism  of  the  system 
of  Bentham  and  Austin.  This  criticism  would  now  com- 
mand general  assent,  yet  Maine  suddenly  stops  short  of 
the  conclusions  one  would  naturally  expect.  He  points 
out  so  clearly  that  most  of  the  propositions  of  Austin 
are  either  unreal  or  self-evident,  that  one  is  inclined  to 
fancy  that  the  praise  he  nevertheless  bestows  is  due 
more  to  respect  for  the  destructive  work  which  he  holds 
Bentham  and  Austin  to  have  done  than  to  a  belief  in 
the  substantial  value  of  their  doctrines.  Mr.  F.  Harri- 


THE  NATURE   OF  SOVEREIGNTY  555 

son,  in  an  article  published  in  the  Fortnightly  Review 
some  time  afterwards,  has  a  very  interesting  discussion 
of  these  two  lectures,  and  of  the  Austinian  theory,  which 
he  also  condemns  in  substance,  while  handling  it  ten- 
derly, and  holding  it  to  be  serviceable  as  bracing  to  the 
reader's  mind.  Mr.  D.  G.  Ritchie  (now  professor  at 
the  University  of  St.  Andrew's),  in  an  article  on  '  The 
Conception  of  Sovereignty,'  in  the  Annals  of  the  Ameri- 
can Academy  of  Political  and  Social  Science  for  January, 
1891,  criticizes  the  Austinian  view  more  stringently,  and 
makes  many  acute  remarks,  with  most  of  which  I  find 
myself  in  agreement.  Mr.  Henry  Sidgwick  devotes  a 
chapter  in  his  Science  of  Politics  to  the  topic,  and  subjects 
the  notion  that  Sovereign  Power  is  absolute  and  irre- 
sponsible to  a  penetrating  and  suggestive  analysis.  Sir 
F.  Pollock  discusses  the  question  in  his  Introduction  to  the 
Science  of  Politics,  and  shows  very  clearly  the  unsound- 
ness  of  the  Austinian  view.  Finally,  Mr.  C.  E.  Merriam, 
junior,  in  his  History  of  the  Theory  of  Sovereignty  since 
Rousseau,  has  presented  a  full  and  useful  account  of  the 
chief  doctrines  put  forward  on  the  subject,  not  stating 
a  theory  of  his  own,  but  adding  pertinent  criticisms  on 
the  views  which  he  summarizes. 


XI 

THE  LAW  OF   NATURE 

I.   THE  IDEA  OF  NATURE  AS  A  RULING  FORCE. 

IT  would  not  be  possible,  within  the  compass  of  any- 
thing less  than  a  substantial  volume,  either  to  present 
a  philosophical  analysis  of  the  ideas  comprised  or  implied 
in  the  term  Law  of  Nature,  or  to  set  forth  and  explain 
the  various  senses  in  which  that  term  has  been  in  fact 
employed,  and  the  influence  which,  in  those  various 
senses,  it  has  exerted  as  well  upon  political  theory  as 
upon  positive  law.  What  I  propose  to  do  here  is  some- 
thing less  ambitious  and  more  closely  connected  with 
the  study  of  the  Roman  law.  It  is  to  sketch  in  outline 
the  process  by  which  the  notion  of  Nature  as  the  source 
of  law  grew  up  and  passed  into  philosophy,  and  from 
philosophy  into  legal  thought ;  to  show  how  the  notion 
took  a  comparatively  definite  shape  in  the  minds  of  the 
Roman  jurists ;  to  describe  the  practical  use  to  which 
they  put  it,  and  finally  to  indicate  (in  the  briefest  way) 
some  of  the  consequences  in  modern  times  due  to  the 
prominence  which  the  Romans  assigned  to  it.  The  sub- 
ject has  been  treated  by  so  many  writers,  some  of  them 
well  known  to  all  students,  that  much  of  it  may  be 
passed  over  as  familiar.  My  chief  aim  will  be  to  show 
that  there  is  far  less  of  a  vague  and  merely  abstract 
character  in  the  conception  than  has  sometimes  been  at- 
tributed to  it ;  that  it  had  a  pretty  definite  meaning  to  the 


THE  LAW  OF  NATURE  557 

Roman  jurists ;  and  that  they  used  it  in  a  thoroughly 
practical  spirit. 

When  man,  having  attained  some  mastery  over  na- 
ture, begins  to  turn  his  thoughts  to  an  explanation  or 
classification  of  the  phenomena  among  which  he  finds 
himself  and  of  which  he  is  a  part,  two  general  observa- 
tions present  themselves  to  his  mind.  The  first  of  these 
is  that  beneath  all  the  differences  which  mark  off  from 
one  another  the  living  creatures,  both  animals  and 
plants,  wherewith  the  world  is  filled,  there  exist  certain 
noticeable  similarities  in  respect  of  which  they  may  be 
distributed  into  groups.  Individual  animals  differ  from 
one  another,  but  all  those  of  a  certain  kind  or  species 
have  certain  points  in  common,  which  constitute  their 
character  as  a  kind.  So  also  different  kinds  have  still 
many  things  in  common.  All  sorts  of  dogs  have  certain 
common  characteristics ;  and  though  dogs  differ  from 
wolves,  dogs  and  wolves  have  many  points  of  resem- 
blance. Now  the  most  general  and  most  remarkable 
of  these  phenomena  in  which  living  creatures  are  alike 
to  one  another  are  the  processes  of  growth  through 
which  they  pass.  They  are  born  in  a  similar  way ;  they 
enter  on  life  small  and  weak;  they  become  larger  and 
stronger ;  they  gain  teeth  at  certain  periods ;  they  shed 
their  hair  or  plumage  at  certain  periods ;  they  at  last 
become  weaker  and  die.  So  plants  spring  out  of  the 
earth  from  seed,  shoot  up  and  give  off  leaves,  bloom 
into  flowers,  form  seed,  wither  down  again  into  the 
earth  and  die. 

From  the  habit  of  noting  these  phenomena  four  con- 
ceptions seem  to  arise.  The  first  is  this,  that  of  the 
various  characteristics  of  each  creature,  those  which  it 
has  in  common  with  other  creatures  of  the  same  kind 
are  the  most  deeply  rooted  and  permanent.  The  second 
is  that  these  characteristics  exist  from  the  origin  of  the 
creature,  and  are  its  Birth-gift.  The  third  is  that  one 
group  of  the  common  characteristics,  and  the  most  im- 
portant of  them  all,  is  the  group  which  includes  the 


558  THE  LAW  OF  NATURE 

phenomena  of  growth  and  decay.  And  the  fourth  is 
that  in  these  phenomena  of  growth  there  is  evidence 
of  some  sort  of  force  working  upon  and  through  the 
creatures,  something  wholly  irrespective  of,  and  no- 
wise referable  to,  their  volitions,  something  stronger 
than  they  are,  and  which  determines  the  course  of  their 
life-processes. 

The  second  observation  is  that  among  human  beings 
there  is  a  similar  identity  of  dominant  characteristics 
combined  with  an  endless  diversity  of  individuals,  a  di- 
versity greater  than  that  between  different  individuals 
of  each  lower  species.  In  all  men,  however  otherwise 
unlike,  there  may  be  noted  the  same  general  tendencies, 
the  same  appetites,  passions,  emotions.  It  is  these  pas- 
sions and  emotions  that  move  men's  actions,  and  move 
them  upon  principles  and  in  ways  which  are  always  es- 
sentially the  same,  despite  the  contrasts  which  one  man 
presents  to  another,  despite  the  jars  and  conflicts  in 
each  man  which  spring  from  the  fact  that  passion  may 
urge  him  in  one  direction,  and  interest  in  another,  while 
fear  my  arrest  action  altogether.  Thus  there  is  formed 
the  conception  of  a  general  constitution  of  man  as  man, 
over  and  above  all  the  peculiarities  of  each  individual, 
a  constitution  which  is  not  of  his  own  making,  but  is 
given  to  him  in  germ  at  the  outset  of  his  life,  and  is  de- 
veloped with  the  expansion  of  his  physical  and  mental 
powers.  The  most  notable  marks  of  this  constitution 
of  man  as  man  are  therefore  its  Origin  at  his  birth,  and 
its  unfolding  in  the  process  of  his  Growth.  So  here  also 
the  phenomena  of  Birth  and  Growth  stand  out  as  the 
notes  of  that  sort  of  unity  which  includes  all  mankind 
and  makes  Man  what  he  is. 

The  language  in  which  I  am  seeking  to  present  these 
conceptions,  though  untechnical,  is  inevitably  tinged  by 
our  modern  habits  of  thought.  But  we  may  well  believe 
that  in  substance  such  conceptions  were  present  to  per- 
sons of  a  reflective  turn  long  before  a  set  of  abstract 
terms  in  which  to  express  them  had  been  invented. 


THE  LAW  OF  NATURE  559 

They  had  worked  themselves  into  the  texture  of  edu- 
cated minds,  and  had  been  conveyed  in  figurative  lan- 
guage by  poets  before  metaphysicians  laid  hold  of  the 
matter. 

When  metaphysicians  appear,  that  is  to  say,  when 
thought,  consciously  speculative,  begins  to  attempt  sys- 
tematic and  comprehensive  solutions  of  the  problems 
of  the  universe  which  it  has  begun  to  realize  as  pro- 
blems, a  new  period  opens.  Looking  round  upon  the 
animated  (and  now  also  with  a  clearer  eye  upon  the  in- 
animate) world,  philosophers  feel  the  need  of  finding 
a  Cause  for  the  regularity  they  observe  in  the  working 
of  physical  forces  and  in  the  growth  of  living  creatures 
upon  settled  and  uniform  lines.  They  conclude  that 
there  must  exist  a  power,  either  personal — a  Deity  or 
Deities — or  impersonal,  a  sort  of  immanent  and  irre- 
sistible force  in  things  themselves,  which  has  stamped 
its  will  or  tendency  upon  the  movements  and  processes 
of  the  material  universe.  They  discover  analogies  be- 
tween the  action  of  such  a  Power  in  the  inanimate  and 
in  the  animated  world,  and  between  its  action  on  other 
animals  and  its  action  on  man.  Thus  they  figure  it  to 
themselves  as  governing  both  on  somewhat  similar  prin- 
ciples, and  aiming  at  somewhat  similar  ends.  The  name 
they  give  it  is  drawn  from  Birth.  It  is  4>v<ns,  Natura, 
Nature. 

When  they  apply  this  method  of  inquiry  or  way  of 
considering  phenomena  to  Man  regarded,  not  as  a  mere 
animal,  but  as  a  rational  being,  they  find  in  him  com- 
plex faculties  and  impulses  working  towards  certain 
ends,  ends  which,  despite  infinite  differences  of  detail, 
are  substantially  the  same  for  all  men.  They  note  cer- 
tain characteristics  and  tendencies  which  they  call  Nor- 
mal, as  being  those  prescribed  by  the  general  rules  of 
his  moral  and  physical  constitution,  and  they  deem 
every  thing  varying  therefrom  to  be  either  a  morbid 
aberration,  or  a  fact  of  quite  secondary  consequence. 
And  as  in  the  wider  sphere  of  animated  being,  so  in  that 


560  THE  LAW  OF  NATURE 

of  man  taken  by  himself,  they  conceive  his  constitution 
as  being  the  result  of  a  Power  which  has  framed  it  with 
an  intelligent  purpose,  so  harmonizing  its  various  acti- 
vities as  to  fit  them  to  attain  a  main  and  central  end. 
Just  as  in  the  animal  organism  all  the  forces  and  pro- 
cesses of  the  body  are  so  united  as  best  to  subserve  its 
development,  so  in  man  regarded  as  a  thinking  being 
all  the  capacities,  intellectual  and  emotional,  seem  to  be 
correlated  and  guided  by  a  presiding  influence,  that  of 
the  Rational  Will,  in  obedience  to  which  all  the  parts  and 
all  the  impulses  find  their  proper  line  of  action.  Thus 
that  central  and  supreme  power  which  in  the  material 
universe  has  been  called  Nature  comes  to  be  called  in 
man  Reason,  and  conversely,  Nature  is  conceived  of  as 
necessarily  Rational.  For  as  in  the  universe  at  large 
the  general  tendency  of  things  and  that  which  makes 
their  harmony  is  thought  of,  not  merely  as  a  fact,  but 
also  as  a  principle  or  pervading  force,  not  merely  as  the 
sum  of  the  phenomena,  but  also  as  a  Power  ruling  the 
phenomena,  so  when  a  similar  canon  is  applied  by  ana- 
logy to  man,  this  power  is  found  in  Reason.  And  the 
recognition  of  reason  as  the  harmonizing  principle  in 
man  causes  Nature,  the  force  which  gives  to  all  things 
their  shape  and  character,  to  be  conceived  of  as  an  in- 
telligent force  moulding  phenomena  upon  settled  lines 
to  definite  ends. 

Thus  the  conception  of  Nature,  when  it  is  ready  to 
be  applied  to  human  society,  includes  two  elements. 
One  is  that  of  Uniformity  or  Normality — the  idea  that 
the  essence  and  ruling  principle  in  all  kinds  of  objects 
and  beings  and  processes  resides  in  that  which  they 
have  in  common,  i.e.  in  the  Type  which  runs  through 
them.  The  other  element  is  that  of  Force  and  Control — 
the  idea  that  types  have  been  formed  and  that  processes 
work  under  the  guidance  of  an  intelligent  Power,  a 
power  which  in  the  case  of  the  material  universe  may 
or  may  not  be  what  is  called  conscious  and  personal 
(since  as  to  this  philosophers  differ),  but  whose  analogue 


THE  LAW  OF  MATURE  661 

in  man  is  conscious  and  personal.  Thus  Nature  and 
Reason  are  brought  very  near :  or  at  any  rate,  there  is 
what  may  be  called  a  rational  quality  in  Nature. 

This  view  of  nature  and  her  processes  as  characterized 
by  uniformity  of  action,  and  this  view  of  such  uniformity 
as  necessarily  due  to  some  directing  Force,  took  shape, 
at  a  more  advanced  stage  of  thought  than  the  stage  we 
are  now  considering,  in  the  much  canvassed  expression 
Laws  of  Nature  l.  This  term,  used  to  describe  the  uni- 
formity of  sequence  in  the  phenomena  of  the  material 
universe,  opens  up  a  line  of  reflection  with  which  I  am 
not  here  directly  concerned.  It  is  due  to  an  imagined 
analogy  between  an  ordered  community,  whose  mem- 
bers obey  rules  made  for  them  by  a  governing  authority, 
and  the  ordered  universe,  every  part  of  whose  machinery 
works  with  a  regularity  which  suggests  rational  direc- 
tion by  an  irresistible  Force.  As  laws  are  the  frame- 
work of  a  State,  so  the  sequences  in  the  processes  of 
Nature  are  deemed  to  be  the  framework  of  the  external 
world.  With  the  (moral)  Law  of  Nature  I  am  about  to 
discuss  these  Laws  of  Nature — physical  or  external 
Nature — have  of  course  nothing  to  do.  In  the  latter, 
Nature,  meaning  the  aggregate  of  natural  phenomena, 
is  passive,  and  obeys  laws  set  to  her;  whereas  the  ex- 
pression '  Law  of  Nature  '  represents  her  as  the  power 
which  makes  and  prescribes  laws.  The  '  Laws  of  Na- 
ture '  are  deemed  to  be  imposed  upon  the  world  of  nature 
by  the  Power  which  rules  it,  or,  as  the  Greeks  would 
say,  they  are  laws  given  to  the  Kosmos  by  the  De- 
miurgos ;  whereas  our  (moral)  '  Law  of  Nature  '  is  (as 
will  presently  appear)  the  law  which  Nature  herself  (or 
God  '  the  author  of  Nature  ')  sets  to  mankind,  her  chil- 
dren. Nevertheless  in  the  expression  '  Laws  of  Nature  ' 
(in  the  physical  sense)  the  word  Nature  is  sometimes 
used  to  describe,  not  only  the  passive  subject  which 

1  The  term  has  been  extended  from  material  phenomena  to  those  dealt  with  by 
other  sciences,  such  as  economics  and  philology  (e.g.  laws  of  supply  and  demand, 
'  Grimm's  law'). 


562  THE  LAW  OF  NATURE 

obeys,  but  also  the  active  ruler  who  commands :  and  this 
double  usage  has  tended  to  induce  confusion.  It  may 
be  partly  responsible  for  the  phrase  '  a  violation  of  the 
Laws  of  Nature,'  though  obviously  a  Law  of  Nature  can- 
not be  violated.  All  that  phrase  can  mean  is  that  men 
may,  ignorantly  or  knowingly,  act  in  disregard  of  a  cer- 
tain sequence  of  physical  phenomena,  receiving  the  in- 
evitable recompense  1.  By  the  ancients,  the  two  notions 
were  not  confounded,  and  indeed  the  phrase  '  Laws  of 
Nature,'  in  the  precise  sense  it  bears  to  moderns,  occurs 
very  rarely  among  them,  as  one  may  indeed  say  that 
the  idea  in  any  such  sense  as  ours  was  by  them  but 
faintly  apprehended 2.  But,  distinct  as  these  concep- 
tions are,  they  have  in  common  the  notion  that  Reason 
as  a  Power  presides  over  and  orders  all  things.  And 
Wordsworth  has  in  a  noble  passage  boldly  identified 
with  the  moral  law  the  Force  which  directs  the  majesti- 
cally uniform  march  of  the  celestial  bodies,  when  he  says 
of  Duty— 

'  Thou  dost  preserve  the  stars  from  wrong, 
And  the  most  ancient  heavens  by  Thee  are  fresh  and  strong.' 

Now  let  us  turn  to  the  phenomena  of  political  society 
and  see  how  the  conception  works  itself  out  in  this  field. 

II.   ORIGIN  OF  THE  CONCEPTION  OF  NATURAL  LAW. 

When  the  observer  applies  himself  to  social  pheno- 
mena, he  perceives  again,  as  he  has  perceived  in  study- 
ing the  whole  animated  creation,  two  facts  equally  patent 

1  He  who  steals,  breaks  the  law  and  may  or  may  not  be  discovered  or  punished  : 
he  who  puts  his  finger  in  the  fire  finds  in  the  pain  he  suffers  the  operation  of  the 
regular  sequence  of  physical  phenomena. 

a  There  is  a  passage  in  a  Constitution  of  the  Emperors  Theodosius,  Arcadius, 
and  Honorius  (Cod.  Tkeod.  Bk.  xvi,  Tit.  x.  12)  in  which  the  term  '  laws  of  Nature ' 
is  used  in' a  sense  which  seems  to  come  near  the  modern  one.  Forbidding  any  one 
to  sacrifice  victims  or  consult  the  '  spirantia  exta,'  the  Emperors,  after  threatening 
punishment  as  in  the  case  of  treason,  proceed  to  say,  '  Sufficit  ad  criminis  molem 
naturae  ipsius  leges  velle  rescindere,  inlicita  perscrutari,  occulta  recludere,  inter- 
dicta  temptare.'  The  expression  may  however  mean  nothing  more  than  that  it  is 
impious  to  tamper  with  the  principles  which  keep  the  secrets  of  nature  from  men's 
eyes.  But  in  any  case  it  is  used  in  a  sense  different  from  that  of  the  moral  law 
which  the  ancients  conceived  to  have  been  set  by  nature. 


THE  LAW  OF  NATURE  563 

and  equally  general — Uniformity  and  Diversity.  In 
human  customs,  civil  and  religious,  in  the  rules  and 
maxims  and  polities  of  tribes  and  nations,  there  are 
many  things  wherein  one  community  differs  from  an- 
other1. But  there  are  also  many  things  wherein  all 
agree.  All  deem  some  acts,  and  speaking  generally, 
though  with  many  variations,  the  same  kinds  of  acts, 
to  be  laudable  or  pernicious,  and  award  praise  or  pe- 
nalties accordingly.  All  recognize  somewhat  similar 
relations  between  individuals,  or  families,  or  classes,  as 
indispensable,  and  try  to  adjust  and  regulate  these  rela- 
tions upon  similar  principles.  The  forms  which  such 
relations  take  are  no  doubt  differentiated  by  the  par- 
trcular  stage,  be  it  higher  or  lower,  of  civilization  which 
various  peoples  have  respectively  reached.  The  customs 
of  a  number  of  savage  tribes,  while  bearing  some  re- 
semblance inter  se,  bear  a  slighter  resemblance  to  those 
of  more  advanced  nations.  Yet  even  between  the  sa- 
vage tribe  and  the  semi-civilized  or  civilized  community 
there  are  marked  similarities,  and  the  customs  of  the 
former  are  perceived  often  to  contain  the  germ  of  what 
has  been  fully  developed  among  the  latter. 

Now  the  customs  and  rules  wherein  tribes  or  nations 
agree  are  evidently  the  result  of  dispositions  and  ten- 
dencies which  belong  to  man  as  man.  In  other  words, 
they  are  the  expression  of  what  is  permanent,  essential, 
and  characteristic  of  man,  so  that  if  a  traveller  were  to 
come  upon  some  hitherto  undiscovered  tribe,  he  might 
expect  to  find  these  phenomena  present  there,  just  as 
in  each  child  as  it  grows  up  there  appear  the  familiar 
qualities  and  tendencies  which  belong  to  the  whole 
human  species.  Hence  such  phenomena  of  usage  are 
deemed  to  be  normal,  and  therefore  Natural,  that  is, 
they  are  due  to  the  Force  which  has  made  the  human 

1  The  famous  dictum  which  Herodotus  quotes  from  Pindar,  '  Custom  is  the  king 
of  all  mortals  and  immortals,'  is  quoted  to  show  how  usage  makes  a  thing  seem 
right  to  one  people  and  wrong  to  another,  but  it  was  afterwards  often  taken  in  the 
sense  of  an  assertion  of  the  supremacy  of  Law  over  all  things.  Cf.  Herod,  iii.  38, 
and  Chrysippus,  apud  Marcian  in  Justinian's  Digest,  i.  3.  a. 


564  THE  LAW  OF  NATURE 

species  what  it  is.  So  here  in  the  sphere  of  human  cus- 
toms and  institutions  we  perceive  the  same  contrast 
between  that  which  is  variable  as  being  due  to  circum- 
stance or  environment,  or  what  we  call  chance,  and  that 
which  is  constant  and  uniform  as  being  due  to  causes 
present,  if  not  everywhere,  yet  at  any  rate  in  the  enor- 
mous majority  of  cases.  And  the  source  of  the  con- 
stancy is  to  be  found  here  in  the  political,  no  less  than 
in  the  ethical  and  social  sphere,  in  the  constitution  of 
man  as  a  moral  and  intellectual  being.  Nature  is  there- 
fore, on  this  view,  a  ruling  power  in  social  and  political 
phenomena  as  well  as  in  those  of  material  growth  and  of 
moral  development. 

The  customs  and  usages  of  mankind  are  the  early 
forms  of  what  come  afterwards  to  be  called  Laws — 
seeing  that  all  law  begins  in  custom — as  indeed  the 
Greeks  call  both  by  the  same  name.  Accordingly  those 
who  began  to  philosophize  about  human  society  gave 
shape  to  their  speculation  in  theories  about  Laws. 

Now  Laws,  the  rules  and  binding  customs  which  men 
observe  and  by  which  society  is  held  together,  fall  into 
two  classes.  Some  are  essentially  the  same,  in  all,  or 
at  any  rate  in  most  .communities,  however  they  may 
superficially  vary  in  their  arrangement  or  in  the  techni- 
cal terms  they  employ.  They  aim  at  the  same  objects, 
and  they  pursue  those  objects  by  methods  generally 
similar.  Other  laws  differ  in  each  community.  Perhaps 
they  pursue  objects  which  are  peculiar  to  that  commu- 
nity; perhaps  they  spring  out  of  some  historical  acci- 
dent ;  perhaps  they  are  experimental ;  perhaps  they  are 
due  to  the  caprice  of  a  ruler.  Those  which  prevail  every- 
where, or  at  any  rate,  generally,  appear  to  issue  out  of 
the  mental  and  moral  constitution  common  to  all  men. 
They  are  the  result  of  the  principles  uniting  men  as 
social  beings,  which  Nature,  personified  as  a  guiding 
power,  is  deemed  to  have  evolved  and  prescribed. 
Hence  they  are  called  Natural.  Being  the  work  of  Na- 
ture, they  are  not  only  wider  in  their  area,  but  also  of 


THE  LAW  OF  NATURE  566 

earlier  origin  than  any  other  rules  or  customs.  They  are 
essentially  anterior  in  thought  as  well  as  in  date  to  the 
laws  each  community  makes  for  itself,  for  they  belong  to 
the  human  race  as  a  whole.  Hence  they  are  also  deemed 
to  be  higher  in  moral  authority  than  the  laws  which  are 
peculiar  to  particular  communities,  for  these  may  be 
enacted  to-day  and  repealed  to-morrow,  and  have  force 
only  within  certain  local  limits. 

This  antithesis  of  the  Customs  and  Laws  which  are 
Natural,  Permanent,  and  Universal  to  those  which  are 
Artificial,  Transitory,  and  Local,  appears  in  some  other 
fields  as  well  as  in  that  purely  legal  one  which  we  are 
about  to  consider.  In  particular,  it  takes  three  forms, 
which  may  be  called  the  Ethical,  the  Theological,  and 
the  Political. 

The  ethical  appears  early,  and  indeed  before  there  is 
any  proper  science  of  Ethics.  One  of  the  first  difficulties 
which  men  advancing  in  civilization  encounter  is  the 
conflict  between  the  Law  of  moral  duty  ruling  in  the 
heart  and  the  laws  enacted  by  public  authority  which 
may  be  inconsistent  with  that  law.  This  conflict  is  the 
subject  of  the  Antigone  of  Sophocles.  We  are  all  familiar 
with  the  famous  lines  in  which  the  heroine  replies  to  the 
king,  who  had  accused  her  of  breaking  the  laws  of  the 
city,  by  declaring  that  those  laws  were  not  proclaimed 
by  Zeus  or  by  Justice,  who  dwells  with  the  deities  of 
the  nether  world : — 

ov  yap  TL  JJ.OL  Zevs  rjv  6  K7)pv£a<s  raSc 
ov8*  rj  £vvo«cos  roiv  KOLTOJ  0euiv  A  007. 

Antigone  goes  on  to  say  that  these  laws  of  the  gods, 
unwritten  and  steadfast,  live  not  for  to-day  or  yesterday, 
but  for  ever,  and  no  one  knows  whence  they  spring: — 

ov  yap  TL  vuv  ye  /ca^dc?,  dAA*  act'  TTOTC 
£77  ravTa,  Kovoeis  otocv  e£  OTOV  '<f>a.VTrj- 

The  same  poet  enforces  the  same  view  in  a  lofty  pas- 
sage of  another  drama,  where  the  moral  laws  are  de- 


566  THE  LAW  OF  NATURE 

scribed  as  the  offspring  of  the  gods,  and  not  of  man's 
mortal  nature,  and  which  no  forgetfulness  can  ever  lap 
in  slumber  1. 

The  idea  frequently  recurs  in  later  literature,  and  is 
nowhere  more  impressively  stated  than  in  the  Apologia 
of  Socrates,  where  the  sage  speaks  of  himself  as  being 
bound  to  obey  the  divine  will  rather  than  the  authori- 
ties of  the  State,  treating  this  divine  will  as  being  di- 
rectly, though  internally,  revealed  to  him  by  '  a  divine 
sign,'  and  being  recognized  by  his  own  conscience  as 
supreme. 

The  theological  view  is  vaguely  present  in  early  times, 
as  for  instance  in  Homer,  where  certain  duties,  such  as 
that  of  extending  protection  and  hospitality  to  suppli- 
ants, are  associated  with  the  pleasure  and  will  of  Zeus. 
It  is  most  familiar  to  us  from  St.  Paul,  who  compares 
and  contrasts  the  Law  of  Nature,  which  prescribes  right 
action  to  all  men,  being  instilled  into  their  minds  by 
God,  with  the  Positive  revealed  Law  which  God  has 
given  to  one  particular  people  only. 

'  When  the  Gentiles  which  have  not  the  Law,  do  by 
nature  the  things  contained  in  the  Law,  these,  having 
not  the  law,  are  a  law  unto  themselves ;  which  show  the 
work  of  the  law  written  in  their  hearts,  their  conscience 
also  bearing  witness,  and  their  thoughts  the  meanwhile 
accusing  or  else  excusing  one  another  V 

A  similar  view,  mutatis  mutandis,  is  found  in  not  a  few 
of  the  Greek  philosophers.  Heraclitus  speaks  of  one 
divine  law  whence  all  human  laws  draw  nourishment. 
Socrates,  as  reported  by  Xenophon,  contrasts  the  laws 
of  the  city  with  the  unwritten  laws  which  in  every  coun- 
try are  respected  as  substantially  the  same,  and  says 
that  these  latter  laws  were  laid  down  by  the  Gods  for 

1  Soph.  Anttg.  1.  450  ;  Oed.  Tyr.  1.  865. 

a  Rom.  ii.  14,  15,  where  '  hearts '  is  probably  to  be  taken  in  the  ancient  sense, 
which  regards  the  heart  and  not  the  brain  as  the  seat  of  the  intellect.  Cf.  also 
Rom.  i.  20,  '  For  the  invisible  things  of  God  from  the  creation  of  the  world  are 
clearly  seen,  being  understood  by  the  things  that  are  made,  even  his  eternal 
power  and  Godhead,  so  that  they  are  without  excuse.' 


THE  LAW  OF  NATURE  567 

mankind1,  adding  that  the  fact  that  their  infraction 
carries  its  own  penalty  with  it  seems  to  suggest  a  divine 
source.  Similar  passages  occur  in  Plato,  who  contrasts 
abstract  justice  and  rightful  laws  with  the  actual  laws 
and  customs  that  prevail  in  political  communities.  The 
contrast  becomes  more  definite  in  Aristotle,  whose 
views  are  specially  important,  because  they  profoundly 
influenced  the  scholastic  philosophers  of  the  Middle 
Ages.  He  divides  Justice  as  it  appears  in  the  State  into 
that  which  is  Natural  and  that  which  is  Legal  or  Con- 
ventional, the  former  having  everywhere  the  same  force, 
while  the  latter  consists  of  matters  which  were  origi- 
nally indifferent  and  might  have  been  settled  in  one 
way  or  another,  but  which  have  become  positively  settled 
by  enactment  or  custom.  Some  (he  proceeds)  think  that 
there  is  no  such  thing  as  Natural  Justice,  because  '  just 
things  '  are  not  the  same  everywhere,  whereas  physical 
phenomena  are  everywhere  identical.  This  is  true: 
nevertheless,  even  as  the  right  hand  is  naturally  stronger 
than  the  left,  although  there  are  left-handed  men,  so 
there  is  a  real  difference  between  rules  which  are  and 
rules  which  are  not  natural  2.  Similarly,  in  a  more  popu- 
lar treatise,  Aristotle  divides  law  into  that  which  is  Com- 
mon, being  in  accordance  with  Nature  and  admitted 
among  all  men,  and  that  which  is  Peculiar  (?8tos),  settled 
by  each  community  for  itself3.  This  he  treats  as  a  fa- 
miliar conception,  to  which  an  advocate  pleading  a  cause 
may  appeal  when  he  finds  positive  law  against  him.  He 
quotes  the  passage  already  cited  from  Sophocles,  and 


1  Xen.  Memor.  iv.  4,  15  sqq.    Oeous  ol/mai  TOW?  PO/XOV?  TOVTOWS  TOI?  d 
These  words  are  put  into  the  mouth  of  Hippias,  but  are  part  of  the  argument 
which  Socrates  conducts. 

a  Eth.  Nicom.  \.  7. 

8  Rhet.  i.  10  and  13  :  Ae'yw  6e  vonov  rov  nevl&iov  rov  Se  KOIVOV,  loiov  n«v  rbv  «a<rroi« 
wpuTfxevoc  irpb?  aiirov's,  *cai  rovrov  rov  pfv  aypaQov  rov  oe  yeypa/x/LLeVof  ,  icoivbv  oe  rov 
Kara  <t>vtriv.  *Eori  yap,  &  iiavrevovrai  Tt  irai'Tes,  <£>v<rei  icoivbv  oiitaiov  «ai  ajucop,  KO.V 
fXT]£e^ta  KOLvtavia  irpo«  aAAijAovs  jj  firjfie  avvQriKj). 

The  lines  of  Empedocles  refer  to  what  it  seems  strange  to  call  a  part  of  Univer- 
sal Law,  the  abstention  from  killing  a  living  thing—  TO  t^  itrtLvuv  TO  l^vxov'  rovro 
yap  ov  Tial  pev  oiKaiov  Tiac  o'  ov  SLKOLIOV, 

aAAa  TO  /btef  iravTiav  vofjafjiov  Sid  r'  evpvufoovros 

aide'pos  fiVfKsvs  TC'TOTOI  6ux  T*  oTrAeVow  auy^s.     (Rket.  i.  13.) 


568  THE  LAW  OF  NATURE 

two  lines  of  Empedocles  descanting  on  Universal  Law. 
So  Demosthenes  refers  to  the  '  common  law  of  all  man- 
kind '  which  justifies  a  man  in  defending  his  property  by 
force  1. 

The  Stoics  took  up  the  idea  and  worked  it  out  with 
great  fullness  and  force,  especially  on  its  ethical  side. 
They  developed  the  Aristotelian  conception  of  Nature 
as  the  guiding  principle  immanent  in  the  universe.  This 
principle  is  Reason,  i.e.  the  Divine  Reason;  and  Natural 
or  Common  (^Universal)  Law  is  its  expression.  So 
also  in  Man,  who  is  a  part  of  universal  nature,  Reason 
is  the  ruling  and  guiding  element,  ordering  all  his  facul- 
ties in  such  wise  that  when  they  are  rightfully  developed 
in  action  he  is  obeying  his  true  nature.  Thus  the  for- 
mula '  to  live  according  to  nature  '  becomes  the  concise 
statement  of  what  is  at  once  his  duty  and  his  happiness. 

Philosophers  were  however  by  no  means  unanimous 
on  the  subject.  The  Sceptics  and  the  New  Academics 
denied  altogether  that  there  was  such  a  thing  as  the 
'  naturally  just  (<£vo-«  SIKCUOV),'  pointing  to  the  diversities 
in  the  positive  law  of  all  States,  and  also  to  the  disagree- 
ments among  speculative  thinkers.  But  the  Socratic 
or  Aristotelian  or  Stoic  view  prevailed,  having  ethical 
or  religious  considerations  to  recommend  it  to  those 
who  greatly  desired  to  find  an  ethical  basis  for  life,  and, 
if  possible,  create  thereout  a  religion. 

What  I  have  called  the  Political  form  of  the  idea  is  to 
be  found  in  the  notion,  as  old  as  Epicurus,  that  there  is 
a  close  connexion  between  the  Law  of  Nature  and  the 
Common  Good,  a  connexion  sometimes  represented  by 
saying  that  Natural  Justice  prescribes  what  is  useful 
for  all,  sometimes  by  holding  that  practical  utility  is 
the  test  of  whether  any  law  is  to  be  deemed  to  have 
the  authority  of  Nature  behind  it  2.  This  notion  comes 
right  down  through  the  ancient  world  to  modern  times, 

1  Against  Aristocrates,  630. 

3  Epicurus  described  Natural  Justice  as  an  agreement  made  for  the  sake  of  com- 
mon advantage  :  TO  TIJ?  <f>ucrew?  SIKO.IOV  eort  <rvft.fto\ov  TOU  <7v/x0epovros  eis  TO  fir)  /3A<£- 
WTeiv  aAAjjAovs  ftrjfie  /3A.a7rreo-0ai  (Diog.  Laert.  x.  150). 


THE  LAW  OF  NATURE  569 

and  is  really  implicit  in  nearly  all  that  has  been  written 
on  the  subject.  No  one  would  have  repudiated  the  high 
metaphysical  or  theological  view  of  the  Law  of  Nature 
more  vigorously  than  Bentham,  yet  there  is  an  affinity 
between  his  method  of  applying  utility  as  against  posi- 
tive laws  and  the  methods  of  several  of  the  ancient  philo- 
sophers. And  so  a  German  critic  is  justified  when  he 
talks  of  Bentham  and  Austin  as  the  '  propounders  of 
theories  of  Natural  Law.'  With  the  political  outcome 
of  the  idea,  however,  we  are  not  at  this  moment  con- 
cerned. It  is  enough  to  indicate  how  it  has  found  ex- 
pression in  these  various  fields  l. 

What  I  have  sought  to  do  in  this  introductory  state- 
ment is  to  show  how  the  notion  of  Nature  as  a  force 
governing  social  as  well  as  physical  phenomena  grew 
up,  and  to  indicate  the  wide  influence  it  had  attained  at 
the  time  when  Rome  became  mistress  of  the  world.  Let 
us  now  turn  to  the  Romans,  and  inquire  what  they  meant 
by  Natural  Law,  how  the  conception  shaped  itself  in 
their  hands,  and  to  what  practical  use  they  turned  it. 

The  Roman  conception  has  two  sources,  the  one  his- 
torical, the  other  theoretical.  I  begin  with  the  historical, 
which  is  the  earlier  in  date,  and  incomparably  the  more 
important  2. 

1  Since  this  Essay  was  in  type  I  have  seen  the  article  On  the  History  of  the  Law 
of  Nature,  by  Sir  F.  Pollock,  published  in  the  Journal of  the  Society  of  Compara- 
tive Legislation  for  Dec.  1900,  and  simultaneously  in  the  Columbia  Law  Review, 
Jan.  1901 ;  and  am  happy  to  find  myself  in  substantial  agreement  with  him  upon  all 
points  of  importance  connected  with  the  subject.  Some  branches  of  it,  especially 
the  Greek  and  mediaeval  parts  of  the  history  of  the  idea,  are  treated  of  more  fully 
by  him,  and  the  whole  article  is  full  of  interest.  Judicious  remarks  and  useful  quo- 
tations will  also  be  found  in  Prof.  D.  G.  Ritchie's  Natural  Rights  (published  in 
1895),  Part  i ;  and  in  Dr.  Holland's  Elements  of  Jurisprudence,  pp.  3038  of  ninth 
edition. 

3  A  very  minute  and  careful  collection  of  the  authorities  regarding  lus  Naturae 
and  lus  Gentium  may  be  found  in  the  book  of  Dr.  Moriz  Voigt,  Die  Lehre  vom 
Jus  Naturale,  aequum  et  bonum  undjus  Gentium  der  Romer.  I  do  not  find  my- 
self always  able  to  agree  with  his  views,  but  they  are  stated  with  painstaking 
ability,  and  the  citations  have  often  aided  me. 


570  THE  LAW  OF  NATURE 

III.  THE  ROMAN  'LAW  OF  THE  NATIONS.' 

Long  before  the  time  when  .the  city  on  the  Tiber  had 
become  the  undisputed  mistress  of  Italy,  Rome  began 
to  be  the  resort  of  many  strangers  who  did  not  possess 
even  that  qualified  kind  of  citizenship  (summed  up  in 
the  words  connubium  and  commercium)  which  included 
the  capacity  for  forming  family  ties,  and  for  entering 
into  business  relations  according  to  Roman  rules.  These 
strangers  or  aliens  (peregrini)  had  originally  no  civil 
rights,  public  or  private,  but  they  nevertheless  dealt  with 
Roman  citizens,  sold  to  them,  bought  from  them,  lent 
and  borrowed  money,  entered  into  partnership,  acted  as 
factors  or  supercargoes,  made  wills,  gave  or  received 
legacies.  Similarly,  some  of  them  contracted  marriages 
with  Roman  citizens,  and  became  connected  by  various 
family  bonds.  It  was  necessary  for  the  Roman  courts 
to  deal  with  the  relations,  and  especially  of  course  with 
the  business  relations,  which  were  thus  created.  Yet 
the  courts  could  not  apply  the  rules  of  pure  Roman  law 
to  them,  because  it  was  a  precondition  to  the  doing 
of  certain  formal  acts  under  that  law,  to  the  holding 
certain  legal  relations,  and  (in  some  kinds  of  suits)  to  the 
use  of  the  appropriate  forms  of  procedure,  that  the  doer 
or  holder  should  be  a  full  citizen.  Accordingly  the 
Roman  courts,  when  they  had  to  administer  justice  be- 
tween these  strangers,  or  between  them  and  citizens, 
were  obliged  to  find  certain  principles  and  rules  which 
could  guide  their  action  in  the  same  way  as  the  princi- 
ples and  rules  of  the  pure  Roman  law  guided  them  when 
dealing  with  citizens. 

The  phenomenon  of  having  a  different  law  for  stran- 
gers and  for  citizens  is  one  which  at  first  sight  seems 
strange  to  us  moderns,  because  in  modern  civilized  coun- 
tries ordinary  private  law  is  administered  with  little  re- 
gard to  the  nationality  or  allegiance  of  the  persons  con- 
cerned, the  law  of  the  country  being  regularly  applied, 
except  when  it  can  be  shown  that  the  domicil  of  a  party 


THE  LAW  OF  NATURE  571 

to  a  suit,  or  the  fact  that  a  contract  was  made  with 
reference  to  another  law  than  that  of  the  court  exercis- 
ing jurisdiction,  or  the-  situation  of  the  property  dealt 
with,  requires  the  application  of  some  other  (i.e.  foreign) 
law1.  But  in  the  ancient  world  foreigners  everywhere 
stood  on  a  different  level  from  citizens,  as  regards  not 
only  political,  but  also  private  civil  rights;  the  sense  of 
citizenship  being  much  more  intense  in  small  commu- 
nities, and  there  being  no  such  bond  of  fellowship  as 
the  Christian  Church  subsequently  formed  for  the  Mid- 
dle Ages  and  the  modern  world  2.  Indeed  it  was  the 
Roman  Empire  and  the  Church  taken  together  which 
first  created  the  idea  of  a  law  common  to  all  subjects 
and  (later)  to  all  Christians,  a  law  embodying  rights  en- 
forceable in  the  courts  of  every  civilized  country. 

How  then  did  the  Roman  magistrates  find  the  law 
which  they  needed  for  the  above-mentioned  purpose? 
As  they  could  not  apply  their  own  law,  so  neither  could 
they  select  the  law  of  any  one  of  the  States  which  sur- 
rounded Rome,  because  the  persons  between  whom  jus- 
tice had  to  be  done  came  from  a  great  number  of  States 
and  tribes,  each  of  which  had  a  law  of  its  own.  Being 
unable  therefore  to  borrow,  they  were  forced  to  create. 
They  would  appear  to  have  created — I  say  '  appear/ 
because  our  knowledge  of  the  matter  is  far  from  com- 
plete— by  taking  those  general  principles  of  justice,  fair 
dealing,  and  common  sense,  which  they  found  recog- 
nized by  other  peoples  as  well  as  their  own,  and  by  giving 
effect  to  those  mercantile  and  other  similar  usages  which 
they  found  prevailing  among  the  strangers  resident  at 
Rome.  Thus  by  degrees  they  built  up  a  body  of  rules 
and  a  system  of  legal  procedure  which,  while  it  resem- 

1  In  the  days  after  the  fall  of  the  Roman  Empire,  however,  different  laws  were 
applied  to  different  sets  of  persons  in  the  extra-European  dominions  of  European 
States,  e.g.  the  Roman  law  to  the  clergy  and  the  provincial  subjects,  the  barbarian 
law  to  barbarians.  And  the  same  thing  happens  now  in  countries  where  Euro- 
peans and  Musulmans  or  semi-civilized  tribes  dwell  side  by  side. 

a  Among  some  of  the  Greek  cities,  however,  before  they  were  engulfed  in  the 
Roman  dominion,  there  had  grown  up  a  practice  by  which  friendly  commonwealths 
reciprocally  extended  certain  civil  rights  to  one  another's  citizens. 


572  THE  LAW  OF  NATURE 

bled  their  own  system  in  many  of  its  general  features, 
was  less  technical  and  more  consonant  to  the  practical 
convenience  and  general  understanding  of  mankind. 
They  called  it  the  Law  of  the  Nations  or  of  Mankind 
(ius  gentium)  l,  not  in  the  sense  of  law  valid  as  between 
nations  (what  we  should  call  International  Law2),  but 
as  being  the  common  or  general  law,  just  as  the  expres- 
sion nusquam  gentium  means  '  nowhere  at  all  3.'  It  is 
the  law  which  nations  in  general  used  and  could  compre- 
hend. Each  of  these  nations,  or  communities — Tuscans, 
Umbrians,  Greek  cities  of  Southern  Italy,  Carthaginians, 
and  so  forth — had  a  law  of  its  own,  with  certain  peculi- 
arities which  no  other  people  could  be  expected  to  know 
or  perhaps  to  relish.  But  the  principles  of  good  faith 
and  equity  underlay,  and  were  recognized  in,  the  laws  of 
all,  so  that  this  Law  of  the  Nations  represented  the  com- 
mon element  which  all  shared,  and  by  which  all  might 
be  content  to  be  judged.  Thus  it  comes  near  to  what 
the  Greeks  had  called  the  '  common  law  of  mankind.' 
Yet  it  is  not  to  be  identified  with  that  law,  for  it  is  con- 
ceived of  as  something  concrete,  resting  entirely  on  the 
fact  that  men  observe  it,  and  possibly  not  always  in  ac- 
cordance with  abstract  justice. 

We  need  not  here  examine  the  question,  which  indeed 
our  data  do  not  enable  us  to  answer,  by  what  practical 
methods  or  processes  the  Roman  Courts  proceeded  to 
frame  this  Law  of  the  Nations ;  whether,  and  if  so  how 

1  The  word  gens,  though  we  commonly  translate  it  '  nation,'  was  originally  used 
to  denote  a  clan  or  sept  (e.g.  Fabii,  Julii),  and  always  retained  this  as  one  of  its 
meanings.  Can  this  original  sense  have  had  anything  to  do  with  the  earliest  legal 
meaning  of  the  term  ?  One  is  tempted  to  conjecture  that  there  might  have  been  a 
sort  of  common  law  of  the  gentes,  recognized  in  contradistinction  to  the  law  of  each 
genS)  but  when  we  find  the  term  in  the  time  of  Cicero,  it  has  the  sense  mentioned  in 
the  text,  and  I  do  not  knov/  of  any  facts  supporting  such  a  conjecture.  So  far  back 
as  one  can  go  ius  Quiritium  is  the  term  applied  to  the  law  of  the  city  as  a  whole. 

a  Though  ius  gentium  is  sometimes  the  term  used  to  describe  those  usages  which 
as  being  common  to  all  men  were  in  fact  observed  by  States  in  their  relation  to  one 
another  ;  cf.  Sallust,  Jug.  c.  35  ;  Livy,  i.  14  ;  v.  36.  Obviously  the  rules  which  all 
nations  recognize  would  be  those  which  they  would  apply  in  their  dealings  with 
one  another. 

3  See  the  article  Ius  Gentium  in  Professor  H.  Nettleship's  Contributions  to  Latin 
Lexicography,  He  thinks  the  term  had  become  a  popular  one  before  the  time  of 
Cicero. 


THE  LAW  OF  NATURE  573 

far,  they  actually  did  inquire  into  the  customs  and  rules 
of  the  peoples  with  whom  they  came  most  in  contact; 
or  whether  they  were  content  to  proceed  upon  the  gene- 
ral principles  of  justice  and  utility;  or  whether  they 
followed  in  the  main  their  own  law,  stripping  off  its 
technicalities  while  preserving  its  substance.  All  three 
methods  might  be  more  or  less  used.  But  probably 
they  were  chiefly  influenced  by  the  customs  which  they 
found  actually  recognized  by  traders  from  various  na- 
tionalities resident  at  Rome.  Before  the  Courts  stepped 
in  to  administer  justice  among  the  strangers,  commer- 
cial practice  had  doubtless  created  a  body  of  customs 
which  were  in  fact  observed,  though  no  express  and 
binding  sanction  had  yet  been  given  to  them.  One  may 
illustrate  this  by  recalling  the  fact  that  much  of  our  own 
mercantile  law  is  based  upon  customs  of  merchants 
which  English  Courts,  seeing  them  recognized  by  honest 
traders  as  actually  binding,  and  seeing  that  contracts 
were  made  with  regard  to  them,  and  that  they  were  in 
fact  understood  as  being  conditions  implied  in  such  con- 
tracts, proceeded  to  enforce,  treating  them  as  being 
really  part  of  the  contract.  This  process  of  turning  cus- 
tom into  law  went  on  actively  so  late  as  the  time  of  Lord 
Mansfield,  of  whom  it  has  been  said  that  he  and  the 
juries  at  the  Guildhall  in  the  City  of  London  created  no 
small  part  of  English  commercial  law.  So  the  English 
officials,  when  they  began  to  administer  justice  among 
traders  in  India,  found  a  number  of  customs  actually 
observed,  and  built  up  a  body  of  law  out  of  these  rules, 
plus  their  own  notions  of  what  was  fair  and  just,  together 
with  such  recollections  as  they  had  of  the  principles  of 
English  law1. 

What  is  certain  is  that  the  Romans  did  not  formally 
enact  any  parts  of  this  new  Law  of  the  Nations.  It  was 
built  up  solely  by  the  practice  of  the  courts  and  the 
action  of  the  jurists ;  and  it  took  definite  shape  only  in 

1  See  Essay  II,  pp.  97-101. 


574  THE  LAW  OF  NATURE 

the  edicts  of  the  Praetors  and  Aediles  1.  By  the  end  of 
the  Republic  it  had  grown  to  considerable  dimensions, 
and  long  before  that  date  had  begun  to  exercise  a  potent 
influence  upon  the  development  of  the  law  which  be- 
longed to  citizens  only,  and  which  was  therefore  called 
ius  civile.  Such  dicta  of  the  professional  jurists  regard- 
ing ius  gentium  as  we  possess  belong  to  a  later  time,  and 
the  earliest  authority  who  mentions  it  is  Cicero.  He 
says  that  '  our  ancestors  distinguished  the  law  of  citi- 
zens from  the  law  of  the  nations,  that  which  is  proper 
to  citizens  not  being  therewith  part  of  the  law  of  the 
nations,  whereas  that  which  belongs  to  the  law  of  the 
nations  ought  to  belong  to  the  law  of  citizens  also  2  ' ; 
and  in  several  other  passages  he  contrasts  the  two  kinds 
of  law,  observing  in  one  place  that  the  ius  gentium,  like 
part  of  the  ius  civile,  is  unwritten,  i.e.  not  included  in 
statutory  enactments  3.  He  talks  of  it  as  a  body  of  posi- 
tive law  resting  on  custom  and  agreement,  but  unfor- 
tunately does  not  tell  us  how  that  particular  part  of  it 
which  the  Roman  Courts  administered  had  been  formed. 
We  may,  however,  safely  conclude  that  the  procedure 
of  the  magistrates  in  granting  actions  and  allowing 
defences  in-  certain  cases  had  been  the  chief  agency 
whereby  it  received  a  definite  form,  and  that  the  mate- 
rials were  (as  already  observed)  chiefly  furnished  by  the 
habits  of  dealing  which  had  arisen  among  the  strangers 
resident  at  Rome  in  their  intercourse  with  Romans  and 
with  one  another,  in  their  bargains  and  transfers  of 
property,  in  the  forms  and  conditions  relating  to  loan 
and  pledge  and  selling  and  hiring,  such  conditions  being 
usually  embodied  in  documents  to  which  a  specific  legal 

1  See  as  to  this  Essay  XIV,  p.  707.  Thus  Praetor-made  law,  ius  honorarium, 
very  largely  coincides  with  and  covers  the  field  of  ius  gentium,  but  the  two  are  by 
no  means  identical.  The  actio  Publiciana,  for  instance,  belonged  to  the  former, 
but  not  (except  so  far  as  natural  equity  suggested  it)  to  the  latter.  So  in  Digest  xvi. 
3,  31  '  merum  ius  gentium '  is  opposed  to  '  praecepta  civilia  et  praetoria.' 

8  l  Itaque  maiores  aliud  ius  gentium,  aliud  ius  civile  esse  voluerunt.  Quod  ci- 
vile, non  idem  continuo  gentium,  quod  autem  gentium,  idem  civile  esse  debet '  (De 
Off.  iii.  17.  69). 

3  Orat.  Partit.  xxxvii.  130. 


THE  LAW  OF  NATURE  575 

effect  would  be  attached.  Broadly  speaking,  the  basis 
or  source  of  the  underlying  principles  of  ius  gentium 
would  as  respects  commercial  matters  be  found  in  good 
faith  and  common  sense,  and  as  respects  family  matters 
and  inheritance  in  natural  affection. 

This  sketch,  slight  as  it  is,  may  suffice  to  indicate  how 
the  Romans  were  brought  to  deal  in  a  concrete  and 
practical  way  with  the  phenomenon  we  were  consider- 
ing on  its  abstract  side,  viz.  the  distinction  between 
customs  and  laws  which  are  substantially  common  to 
all  (more  or  less  civilized)  communities,  and  those  which 
are  peculiar  to  one  or  a  few  only.  That  which  struck  a 
Greek  thinker  who  reflected  on  the  state  of  the  Medi- 
terranean world  in  the  fifth  or  fourth  century  B.C.,  viz. 
virtual  uniformity  in  some  customs  and  laws,  endless 
diversity  in  others,  struck  every  Roman  magistrate  who 
had  to  preside  in  urban  or  provincial  courts  during  the 
third  and  second  centuries  B.C.  The  Greek  formed  a 
philosophic  theory :  the  Roman,  being  a  ruler,  was  forced 
to  construct  a  working  system.  .  But  the  Greek  had 
little  occasion  to  apply  his  theory;  and  the  Roman  did 
not  think  of  basing  his  system  on  any  theory  at  all.  His 
ius  gentium  grew  up  and  spread  out  and  bore  fruit,  and 
was  already  influencing  both  the  old  law  of  Rome  her- 
self and  the  administration  of  Roman  courts  in  the  pro- 
vinces before  (so  far  as  we  know)  anybody  had  thought 
of  connecting  the  Law  of  Nature  with  the  Law  of  the 
Nations. 

IV.    CONNEXION  OF  THE  LAW  OF  NATURE  WITH  THE 
LAW  OF  THE  NATIONS. 

This  connexion  belongs  to  the  last  days  of  the  Roman 
Republic,  and  was  probably  due  to  that  increased  in- 
terest in  philosophy  and  ethics  which  owed  so  much  to 
the  literary  activity  of  Cicero,  who  was  not  only  a  states- 
man and  an  orator,  but  an  ardent  student  of  philosophy 
and  a  voluminous  writer  on  philosophical,  especially 


576  THE  LAW  OF  NATURE 

ethical,  topics.  It  is  the  fashion  now  to  depreciate  Mar- 
cus Tullius.  He  was  probably  also  depreciated  in  his 
own  time.  The  learned  black-letter  lawyers,  who  had 
been  his  fellow  pupils  under  Q.  Mucius  the  Augur, 
doubtless  said  of  him,  as  Sugden  is  reported  to  have  said 
of  Lord  Chancellor  Brougham,  that  if  only  he  knew  a 
little  about  law  he  would  know  something  about  every- 
thing. And  the  Greek  philosophers  with  whom  he  loved 
to  discourse  probably  hinted  to  one  another,  when  their 
eloquent  patron  was  not  by,  that,  after  all,  no  Roman 
would  ever  be  a  thinker.  We  can  admit  a  measure  of 
truth  in  both  criticisms.  But  Wisdom  is  justified  of  all 
her  children,  and  Cicero  has  outlived  both  the  lawyers 
and  the  philosophers  of  his  own  time.  His  eager  and 
capacious  intellect,  playing  round  political  and  legal,  as 
well  as  metaphysical  and  moral  inquiries,  and  using  a 
brilliant  style  to  popularize  and  render  attractive  all 
that  he  touched,  gave  a  currency  to  the  ideas  of  Greek 
speculators  which  made  them  tell  more  widely  than  ever 
before  upon  the  Roman  mind,  and  all  the  more  so  when, 
in  the  generation  that  succeeded  his  own,  the  career  of 
political  distinction  through  forensic  and  senatorial  and 
platform  oratory  began  to  be  closed  by  the  growth  of 
an  absolute  monarchy.  Indeed  Cicero's  own  philosophi- 
cal treatises  were  due  to  that  retirement  from  active 
political  life  which  the  ascendency  of  Julius  Caesar 
caused ;  and  his  composition  of  them  was  prompted  (as 
he  tells  us)  by  a  wish  to  stimulate  the  flagging  public 
spirit  of  his  younger  contemporaries. 

Now  the  theory  of  the  Law  of  Nature,  suggested  by 
Heraclitus  and  Socrates,  preached  more  actively  by 
Zeno  and  Chrysippus,  had  been  much  discussed  and 
widely  diffused  during  the  centuries  between  Aristotle 
and  Cicero.  Its  acceptance  and  influence  were  aided 
by  the  changes  which  had  been  going  on  in  the  world, 
the  Hellenization  of  Asia,  the  admixture  of  religions 
and  mythologies,  and  that  more  easy  and  frequent  in- 
tercourse between  the  Western  and  Eastern  Mediter- 


THE  LAW  OF  \ATURE  577 

ranean  countries  which  enabled  the  peoples  to  know 
more  of  one  another.  The  doctrine,  though  not  con- 
fined to  the  Stoics,  received  among  them  special  pro- 
minence, and  became  a  corner-stone  of  their  ethical 
teaching.  Moral  duty  was  by  them  practically  deduced 
from,  and  identified  with,  the  Law  of  Nature.  Cicero, 
though  he  would  not  have  described  himself  as  a  Stoic, 
substantially  adopts  their  language  on  this  point,  and 
lays  great  stress  on  Nature  as  the  source  of  the  highest 
law  and  morality,  invoking  the  doctrine  in  his  speeches 
as  well  as  expounding  it  in  treatises1.  With  him  the 
Law  of  Nature  springs  from  God,  is  inborn  in  men,  is 
older  than  all  the  ages,  is  everywhere  the  same,  can- 
not be  in  any  wise  altered  or  repealed.  It  is  the  basis 
of  all  morality.  It  ought  to  prescribe  the  provisions  of 
positive  law  far  more  extensively  than  it  in  fact  does, 
and  to  give  that  law  a  higher  and  more  truly  moral 
character.  We  might  expect  Cicero  to  go  on,  if  not  to 
identify  it  with  the  ins  gentium  which  he  contrasts  with 
the  peculiar  law  of  Rome,  at  any  rate  to  describe  it  as 
the  source  and  parent  of  ins  gentium.  This,  however,  he 
does  not  actually  do,  though  more  than  once  he  comes 
near  it  2.  Ins  gentium  is  to  him  a  part  of  positive  law, 
though  much  wider  in  its  range  than  ins  civile,  whereas 
the  Law  of  Nature  is  altogether  an  ethereal  thing,  eter- 
nal, unchangeable,  needing  no  human  authority  to  sup- 
port it,  in  fact  St.  Paul's  '  law  written  on  the  hearts  of 
men.' 

Although  Cicero  was  the  most  copious  and  eloquent 
writer  among  those  Romans  who  pursued  the  study 
of  philosophy  in  his  generation,  he  did  not  by  any  means 

1  See  especially  the  fragment  of  his  De  Republica  preserved  by  Lactantius,  Div, 
Inst.  vi.  8,  7. 

a  Many  writers  have,  however,  thought  that  Cicero  did  mean  to  identify  ius 
gentium  and  ius  naturae,  basing  themselves  on  De  Off.  iii.  17,  69,  and  iii.  5,  23. 
Cf .  also  the  wor  Js  '  lege  .  .  .  naturae,  communi  iure  gentium  '  in  De  Harusp.  Re- 
spons.  15,  32,  an_  'consensio  omnium  gentium  lex  naturae  putanda  est '  in  Tusc. 
Disp.  \.  13.  The  point  is  argued,  at  great  length,  by  Voigt  (op.  cit.  vol.  i.  pp.  65- 
75,  213-219,  and  Appendix  II).  Nor  does  Cicero  quite  precisely  define  the  relation 
of  his  Laws  of  Nature  to  positive  law.  He  writes  rather  as  a  moralist  than  as  a 
jurist. 

37 


578  THE  LAW  OF  NATURE 

stand  alone.  Most  of  the  prominent  statesmen,  orators, 
and  authors  occupied  themselves  with  ethical  specula- 
tion; and  this  was  no  less  true  of  the  leading  spirits  of 
the  following  century.  The  great  jurists  of  the  Au- 
gustan and  post- Augustan  age,  such  as  Antistius  Labeo, 
Massurius  Sabinus,  and  Cassius,  refer  to  the  Law  of 
Nature  as  a  source  of  law  already  familiar.  Two  influ- 
ences were  indeed  at  work,  which  gave  to  philosophy  a 
greater  prominence  than  it  had  perhaps  ever  enjoyed 
before  or  has  ever  enjoyed  since.  Faith  in  the  old  re- 
ligions having  practically  vanished  from  the  educated 
classes,  some  substitute  was  needed,  and  the  more  pure 
and  earnest  minds  sought  this  in  philosophy.  The 
career  of  political  life  having  been,  in  its  old  free  form, 
closed  by  the  vesting  of  all  real  power  in  the  hands  of 
one  person,  who  presently  became  recognized  as  le- 
gally sovereign,  men  were  more  and  more  led  to  seek 
solace,  or  enjoyment,  or  at  any  rate  occupation,  in  the 
study  of  metaphysics  and  ethics.  Jurisprudence  con- 
tinued to  be  pursued  by  many  of  the  most  powerful  and 
cultivated  intellects ;  and  philosophy  was  not  only  a 
main  part  of  education  which  such  men  received,  but 
claimed  much  of  their  time  and  thought.  They  were  so 
permeated  by  it,  that  both  its  methods  and  its  principles 
must  needs  influence  their  treatment  of  legal  matters, 
whether  as  writers,  or  as  magistrates,  or  as  advisers  of 
the  monarch  and  framers  of  legislation.  The  idea  of  the 
Law  of  Nature  as  the  source  of  morality  and  the  true 
foundation  of  all  civil  laws,  the  idea  of  all  mankind  as 
forming  one  natural  community  of  which  all  are  citizens, 
and  in  which  all  are  equal  in  the  eyes  of  Nature — 
this  idea  had  come  to  pervade  the  minds  of  thinking 
men,  whether  or  no  they  were  professed  adherents  of 
any  school  of  philosophy.  It  was  taken  as  a  generally 
accepted  truth,  and  was  therefore  assumed  and  referred 
to  without  adducing  arguments  on  its  behalf,  far  re- 
moved from  the  actual  facts  of  the  world  as  was  the 
ideal  to  which  it  pointed. 


THE  LAW  OF  NATURE  579 

The  growth  and  acceptance  of  the  doctrine  may  be 
compared  with  the  process  whereby  certain  notions, 
now  pretty  generally  received  in  nearly  all  civilized  coun- 
tries, have  made  their  way  during  the  last  two  cen- 
turies. Such  are  the  doctrines  known  in  America  as 
those  of  the  Declaration  of  Independence,  and  in  France 
as  the  principles  of  1789.  Such  is  the  doctrine  of  the 
freedom  of  the  individual  conscience,  and  the  consequent 
wrongfulness  of  religious  persecution.  These  doctrines 
began  to  be  asserted  (especially  in  England)  during  the 
seventeenth  century.  They  were  diffused  slowly,  and 
constantly  denied  by  the  powers  that  be,  but  they  have 
been  now  virtually  accepted  in  principle  by  all  thinking 
men.  Few  think  it  necessary  to  argue  on  their  behalf; 
yet  they  are  very  far  from  having  secured  their  full  effect, 
for  in  some  countries  the  rulers  refuse  to  apply  them, 
and  in  almost  all  countries  they  are  admitted  to  be  sub- 
ject to  exceptions  which  render  their  full  application 
difficult.  They  represent  rather  an  ideal  towards  which 
society  is  held  to  be  moving,  than  a  positive  basis  on 
which  existing  society  is  built. 

Although,  however,  the  Romans  of  the  earlier  im- 
perial period  saw  that  their  conception  of  the  Law  of 
Nature  was  a  long  way  from  being  realizable  in  such  a 
world  as  was  then  present,  they  also  discovered  in  the 
changes  that  had  passed  upon  that  world  much  which 
recommended  the  conception  as  true  and  sound.  The 
extension  of  Roman  dominion  was  completing  the  pro- 
cess which  the  conquests  of  Alexander  the  Great  had 
begun.  Eastern  religions  invaded  the  West ;  Greek  and 
Latin  became  world-languages;  commerce  brought  all 
the  Mediterranean  peoples  together;  nations  and  na- 
tionalities were  blent  and  ultimately  fused  in  a  com- 
mon subjection  to  Rome.  The  provincial  rose  as  the 
old  Roman  citizen  sank,  so  that  equality  came  nearer 
and  nearer.  The  old  mutually  exclusive  systems  of  citi- 
zenship and  law  seemed  obsolete ;  and  therewith  the 
traditional  reverence  for  the  ancient  legal  institutions 


580  THE  LAW  OF  NATURE 

of  the  Quirites  passed  away,  even  from  the  conserva- 
tive minds  of  lawyers1.  In  particular  the  idea  of  a 
community  of  all  mankind,  as  opposed  to  the  small  civic 
communities  of  earlier  days,  b.egan  to  approach  a  reali- 
zation in  the  great  empire  which  had  gathered  all  civi- 
lized men  under  its  wings,  had  secured  for  them  peace, 
order,  and  a  just  administration  of  the  laws,  and  had 
admitted  every  one,  whatever  his  race,  tongue,  or  birth- 
place, to  a  career  of  honourable  ambition  in  civil  and 
military  office,  a  career  whose  possibilities  included  even 
the  imperial  dignity  itself. 

For  this  all-embracing  commonwealth,  this  societas 
omnium  hominum,  of  which  the  Greek  philosophers  and 
Cicero  had  written,  and  which  had  taken  concrete  shape 
in  the  Roman  Empire,  there  would  seem  to  be  needed 
some  common  law,  since  the  ideas  of  law  and  state  were 
correlative  2,  according  to  the  dictum,  Quid  est  civitas 
nisi  iuris  societas  3  ?  Now  there  was  a  law  which  could 
actually  be  applied  to  all  Roman  subjects,  non-citizens 
and  citizens  alike,  and  which  was  supposed  to  be  the  law 
common  to  all  men  as  being  the  law  which  all  nations 
used,  and  which  had  therefore  been  applied  by  Roman 
Courts  where  persons  outside  the  pale  of  Roman  law 
proper  were  concerned.  Just  as  the  law  of  Rome  drew 
its  authority  from  the  will  of  the  people,  whether  signi- 
fied expressly  by  enactments  or  tacitly  by  usage  and 
consent,  so  this  general  law  rested  on  custom,  on  the 
understanding  and  will  of  collective  mankind,  evidenced 
by  their  practice  ;  and  its  source  was  therefore  one  which 
met  and  satisfied  the  view  that  the  community  are  the 
source  of  law.  Now  this  common  law  of  mankind  was 


1  There  does  not,  however,  seem  to  be  any  ground  for  the  notion  that  the  Roman 
lawyers  ever  despised  ius  gentium  as  only  fit  for  inferior  people  ;  that  they  deemed 
it  '  an  ignoble  appendage  to  their  civil  law,'  as  Sir  H.  Maine  says.  That  this  was 
ever  their  feeling  is  mere  surmise.  No  traces  of  such  a  view  appear  in  our 
authorities. 

a  Not,  of  course,  in  the  Austinian  sense  that  law  is  only  what  the  State  has  ex- 
pressly enacted,  for  the  ancients  always  dwell  upon  custom  (mores  maiorum,  con- 
suttudo  inveterata,  consensus  utentium)  as  a  chief  source  of  law. 

»  Cic.  De  Rep.  i.  32.  49- 


THE  LAW  OF  NATURE  581 

the  ius  gentium.  Though  in  point  of  fact  gathered  and 
moulded  by  Roman  Courts,  it  was  deemed  to  repre- 
sent the  essence  of  the  law  which  prevailed  among  vari- 
ous neighbour  peoples,  and  of  the  usages  which  common 
sense  and  the  needs  of  commerce  had  sanctioned  among 
men  in  general,  wherever  dwelling.  It  was  conceived 
of  as  being  common  to  all  mankind  (ius  commune  om- 
nium hominum1)  (omni  humano  generi  commune*),  or 
as  the  law  which  exists  among  all  peoples  (ius  quod 
apud  omnes  populos  peraeque  custoditur*)  (ius  quo 
gentes  humanae  utuntur*).  It  was  applicable  to  per- 
sons who  had  no  rights  of  citizens  in  any  city  (dTrdAi&s)  5. 
It  was  coeval  with  the  human  race  itself  (cum  ipso  humano 
gcncrc  proditum  6).  It  was  in  all  these  respects  contrasted 
with  ius  civile,  just  as  the  Law  of  Nature  (ius  naturalc) 
was  similarly  contrasted.  Finally  it  was  the  law  which 
natural  reason  had  created  (ius  quod  naturalis  ratio  con- 
stituit  7).  When  this  point  had  been  reached,  it  became 
practically  identical  with  the  Law  of  Nature,  and  the 
identity,  implicitly  suggested  in  Cicero's  remark  that  the 
agreement  of  all  nations  must  be  deemed  a  law  of  na- 
ture 8  was  formally  enounced  by  jurists  at  least  as  early 
as  the  time  of  Hadrian.  In  Justinian's  Institutes  the 
identification  is  complete. 

A  third  conception,  to  which  reference  has  not  yet 
been  made,  contributed  to  this  fusion,  viz.  the  conception 
of  }Lqmty(aequumetbomim,aequitas).  Equity  means  to 
the  Romans  fairness,  right  feeling,  the  regard  for  sub- 
stantial as  opposed  to  formal  and  technical  justice,  the 
kind  of  conduct  which  would  approve  itself  to  a  man  of 

1  Gaius,  Inst.  i.  i  ;  Dig.  \.  i,  9. 

a  In  Inst.  lust.  i.  2,  2,  taken  from  Marcian. 

8  Gaius,  Inst.  i.  i. 

4  Ulpian  in  Dig.  i.  i,  i,  4. 

6  Marcian  in  Dig.  xlviii.  19,  17. 
a  Gaius  in  Dig.  xli,  i,  i,/r. 

7  Gaius,  Inst.  i.  i.    The  formal  express  and  specific  identification  is  to  be  found 
only  in  some  jurists,  and  is  most  explicitly  stated  by  Gaius.     There  does  not,  how- 
ever, seem  to  be  sufficient  ground  for  thinking  (as  Voigt,  op.  cit.^  argues)  that  there 
was  any  real  difference  of  opinion  among  them.    Their  language  on  these  points 
is  seldom  precise. 

8  See  p.  577,  note  2,  supra. 


583  THE  LAW  OF  NATURE 

honour  and  conscience.  It  completes  the  idea  of  the 
higher  kind  of  law  by  adding  a  third  element,  or  rather 
a  third  source,  that  which  springs  from  the  breast  of  man 
and  represents  his  natural  sense  of  justice,  his  sympa- 
thetic good  feeling  towards  his  fellow  men.  Thus  we 
may  say  that  seen  from  the  point  of  view  of  theology  or 
metaphysics,  this  universal  or  Natural  law  is  prescribed 
by  God  or  by  Nature.  Seen  from  that  of  history  and 
political  science,  it  issues  from  the  will  of  mankind,  who, 
organized  as  nations,  have  created  it  by  custom  and 
practice.  Seen  from  the  side  of  ethics  and  psychology, 
it  represents  the  tendencies  and  habits  of  the  typical 
good  man,  who  desires  to  treat  his  neighbour  as  he 
would  wish  to  be  himself  treated.  The  coincidence  of 
these  three  streams  of  origin  or  lines  of  thought  enlarges 
the  conception,  defines  it,  gives  to  it,  taken  as  a  whole,  a 
harmonious  symmetry.  Thus  it  becomes  complete  on 
its  theoretical  as  well  as  on  its  practical  side. 

In  the  Roman  jurists  of  the  best  age  we  note  three 
qualities  not  always  united  in  lawyers — a  love  for  theo- 
retical perfection,  an  attachment  to  ancient  usage,  and 
a  sense  of  practical  convenience.  The  first  delivered 
them  from  the  tyranny  of  the  second,  the  second  mode- 
rated their  devotion  to  the  first,  the  third  found  a  middle 
term  between  the  other  two  and  guided  them  in  the  ad- 
justment of  principle  to  fact.  The  blending  of  the  notion 
of  Natural  Law,  as  the  ethical  standard  of  conduct  and 
the  ideal  of  good  legislation,  with  the  notion  of  the  law 
formed  by  the  usages  and  approved  by  the  common 
sense  of  all  nations  as  embodying  what  was  practically 
useful  and  convenient,  satisfied  both  the  philosophical 
and  the  historical  instincts  of  the  jurist.  Had  there  been 
a  similar  combination  of  ideas  and  habits  in  the  English 
jurists  of  the  seventeenth  and  eighteenth  centuries,  our 
legal  progress  would  have  been  more  rapid,  and,  if  the 
phrase  be  permissible,  more  ordered  and  rhythmical. 


THE  LAW  OF  NATURE  583 

V.   RELATION  OF  NATURAL  LAW  TO  GENERAL 
CUSTOMARY  LAW. 

There  are,  however,  misconceptions  against  which  we 
must  be  on  our  guard  in  grasping  and  appraising  this 
identification  of  Natural  Law  with  the  sum  of  that  which 
is  common  in  the  customs  of  mankind. 

In  the  first  place  it  was  not  a  complete  identification. 
There  were  some  points  in  which  Natural  Law  and  the 
Law  of  the  Nations  differed,  and  one  of  these  was  of 
profound  importance.  That  point  was  Slavery.  It  was 
universal  in  the  ancient  world,  and  so  must  be  deemed 
a  part  of  ins  gentium.  But  philosophers  had  pointed  out 
(even  before  the  time  of  Cicero)  that  it  was  contrary  to 
nature1.  Here,  therefore,  is  a  large  department  in 
which  the  sanction  of  Nature  could  not  be  claimed  for 
this  part  of  ius  gentium  any  more  than  it  could  for  much 
of  ius  civile.  Slavery,  says  one  jurist,  is  an  institution  of 
the  Law  of  the  Nations,  whereby  one  man  is  subjected  to 
the  ownership  of  another  against  Nature  2.  And  where 
we  find  the  rigour  of  the  old  law  of  Slavery  modified, 
this  is  always  said  to  be  in  deference  to  nature  and  hu- 
manity, not  to  anything  in  ius  gentium.  And  the  Roman 
jurists  indeed  go  so  far  as  to  hold  that  by  Nature  all 
men  are  equal 3.  So  on  the  other  side  there  were  some 
provisions  of  statute  law  (for  instance,  in  the  rules  re- 
garding inheritance)  which,  though  they  had  been  sug- 
gested by  principles  ascribable  to  the  Law  of  Nature, 
were,  as  resting  on  Roman  statutes,  referred  to  the  cate- 
gory of  ius  civile  rather  than  to  that  of  ius  gentium. 

Secondly,  the  Romans  did  not,  when  they  referred 
any  particular  institution  to  the  ius  gentium,  necessarily 
intend  to  convey  that  it  was  universally  prevalent.  The 
origin  of  hypotheca  for  instance  (mortgage  of  immova- 

1  Ulpian  in  Dig.  1.  17,  32. 

a  Dig.  i.  5,  4,  §  i :  cf.  Inst.  i.  5 ;  Gaius,  Inst.  i.  52. 

3  The  doctrine  that  slavery  is  against  nature  was  older  than  Aristotle,  who  does 
not  accept  it.  The  orator  Alcidamas  (a  contemporary  of  Socrates)  said  eAevflepov? 
a^Kt  iratras  0e6?-  owSeVa  &ov\ov  TJ  <j>v(ri<:  ire7roi>ce»'.  See  W.  L.  Newman's  Politics 
of  Aristotle,  Introduction,  p.  141. 


584  THE  LAW  OF  NATURE 

bles)  and  of  the  syngraphe  (written  acknowledgement  of 
a  debt)  was  due  to  Greek  usage,  and  by  no  means  general 
over  the  world.  These  legal  institutions,  however,  since 
they  did  not  belong  to  Roman  law  proper,  were  held  to 
be  part  of  ius  gentium. 

Thirdly,  there  is  no  ground  for  thinking  that  when 
the  Roman  jurists  said  that  Natural  Reason  was  the 
source  of  ius  gentium,  they  had  altered  their  historical 
view  of  the  origin  and  character  of  the  latter  body  of 
law,  or  fancied  that  there  ever  had  been  an  age,  how- 
ever remote,  however  simple  and  primitive,  during  which 
its  precepts,  in  any  concrete  shape  they  knew  or  could 
imagine,  had  actually  prevailed  among  mankind.  The 
expression  '  lost  Code  of  Nature,'  which  a  distinguished 
writer  has  used1,  is  therefore  an  unfortunate  one,  for 
it  seems  to  imply  that  the  Romans  were  under  the  belief 
that  there  had  once  been  a  so-called  State  of  Nature,  in 
which  the  ius  gentium  served  as  law.  So  far  were  they 
from  such  a  delusion  that  they  ascribe  to  ius  gentium 
war,  captivity,  slavery,  and  all  the  consequences  of  these 
facts,  while  in  the  golden  age,  the  Saturnia  regna  of  the 
poets,  all  men  were  free  2  and  war  was  unknown — 

'  Necdum  etiam  audierant  inflari  classica,  necdum 
Impositos  duris  crepitare  incudibus  ensesV 

Their  identification  of  the  Law  of  Nature,  which  they 
accepted  as  a  doctrine  of  philosophy,  with  the  Law  of 
Nations,  which  their  courts  had  been  administering  and 
their  text-writers  expounding  for  two  or  three  centuries 
at  least,  affected  neither  the  essentially  ideal  character 
of  the  former  nor  the  distinctly  practical  character  of 

1  Sir  H.  Maine  in  Ancient  Law.    It  will  be  seen  that  the  view  which  he  takes  of 
ius  gentium  and  ius  naturae  seems  to  me  to  be  in  several  points  at  variance  with 
the  facts ;  but  I  need  hardly  say  that  no  one  feels  more  strongly  than  I  do  the  value 
of  the  stimulus  to  English  study  and  thought  on  these  subjects  which  his  fertile 
mind  and  brilliant  treatment  have  given,  and  for  which  all  subsequent  writers 
must  be  grateful. 

2  Cf.  Macrob.  Saturn,  i.  7  ;  and  Justin.  Hist,  xliii.  i,  who  says  that  not  only 
slavery  but  also  private  property  was  unknown  under  the  reign  of  Saturn,  so  great 
was  his  justice ! 

3  Virg.  Georg.  ii.  539. 


THE  LAW  OF  NATURE  585 

the  latter.  Had  it  done  either  of  these  things  it  might 
have  worked  for  evil.  But  in  point  of  fact  it  did  not 
palpably  quicken  the  pace  of  legal  reform,  nor  did  it 
induce  any  theoretic  vagueness  in  their  views  of  law,  or 
suggest  crochets  or  subtleties  which  could  impede  the 
manipulation  of  positive  rules.  The  jurists  use  the  two 
terms  as  practically  synonymous,  though  generally  em- 
ploying ins  naturae  or  natnralis  ratio  when  they  wish  to 
lay  stress  on  the  motive  or  ground  of  a  rule,  ius  gentium 
when  they  are  thinking  of  it  in  its  practical  application. 
To  borrow  the  language  of  logic,  the  connotation  of  the 
two  terms  is  different,  while  their  denotation  (save  as 
aforesaid,  and  especially  save  as  regards  slavery)  is  the 
same. 

Thus  happily  united  by  a  synthesis  which  satisfied  at 
once  the  practical  good  sense  and  the  philosophic  temper 
of  the  Roman  jurists,  the  two  conceptions  of  the  Law  of 
Nature  and  the  Common  Law  of  Mankind  went  on  their 
way  rejoicing.  But  after  a  while  an  event  befell  which 
deprived  the  latter  expression  of  its  ancient  concrete 
basis,  and  rendered  it,  except  for  historical  purposes, 
and  as  a  description  of  a  body  of  rules  of  a  particular 
historical  origin,  virtually  obsolete.  This  was  the  ex- 
tension of  Roman  citizenship  to  all  the  subjects  of  the 
Roman  Empire  by  an  edict  of  the  Emperor  Antoninus 
Caracalla  between  212  and  217  A.D.,  an  act  which  de- 
stroyed the  distinction  between  ius  gentium  and  ius  civile 
so  far  as  the  persons  governed  by  each  were  concerned, 
for  there  were  thereafter  comparatively  few  peregrini 
(non-citizen  subjects),  since  ius  civile  was  now  enjoyed 
by  all  the  dwellers  in  the  Roman  world1.  This  may  be 

1  There  remained  as  aliens  (i)  the  class  called  dediticii,  the  lowest  species  of 
freedmen,(a)  persons  deprived  of  citizenship  as  a  punishment  for  crime,  (3)  foreign- 
ers, i.e.  subjects  of  some  other  State  temporarily  resident  in  the  Empire,  and  proba- 
bly also  persons  imperfectly  manumitted  subsequently  to  the  Edict,  together  (pos- 
sibly) with  the  inhabitants  of  territories  added  to  the  Empire  subsequently  to  the 
Edict.  See  Muirhead  (.Historical  Introduction  to  the  Private  Law  of  Rome,  2nd  edi- 
tion, by  Professor  Goudy,  p.  319),  and,  for  a  fuller  discussion  of  the  topic,  Mitteis, 
Reichsrecht  und  Volksrecht  in  den  bstlichen  Provinzen  des  Rbmischen  Kaiserreichs, 
chap,  vi, 


586  THE  LAW  OF  NATURE 

one  of  the  reasons  why,  in  the  constitutions  of  the  Em- 
perors collected  in  the  Codes  of  Theodosius  the  Second 
(A.D.  438)  and  of  Justinian  (A.D.  534),  constitutions  the 
earliest  of  which  date  from  Hadrian,  the  term  ins 
gentium  never  occurs.  It  is  frequent  in  the  Institutes  of 
Justinian  (A.D.  533),  but  that  book  (based  on  the  Institutes 
of  Gaius)  is,  although  a  statute,  yet  primarily  a  manual 
for  learners  who  were  going  to  use  the  extracts  from 
old  jurists  contained  in  the  Digest,  so  that  the  term  could 
not  be  omitted.  When  the  later  Emperors  wish  to  as- 
sign a  ground  for  some  enactment  which  they  are  issu- 
ing, they  commonly  speak  of  Nature,  or  Natural  Reason, 
or  Humanity,  or  Equity,  using  these  words  almost  indis- 
criminately to  describe  the  same  thing. 

VI.    MEANING  ATTACHED  BY  THE  ROMAN  JURISTS 
TO  NATURE. 

Now  let  us  inquire  a  little  more  closely  what  the 
Roman  jurists  and  legislators  meant  to  convey  when 
they  talk  of  Nature,  or  the  Law  of  Nature,  and  what 
are  the  positive  rules  of  law  which  they  ascribe  to 
this  source,  or  established  in  obedience  to  this  prin- 
ciple. 

The  following  senses  in  which  they  use  the  word 
Nature  may  be  enumerated,  though  these  cannot  be 
sharply  distinguished,  for  some  run  into  others. 

1.  The  character  and  quality  of  an  object,  or  of  a 
living  creature,  or  of  a  legal  act  or  conception  (e.g. 
natura    venenorum,    natura   hominum,   natura    apium 
(fera  est),  natura  contractus,  natura  dotis}. 

2.  The  physical  system  of  the  Universe  (rerum  natura), 
and  the  character  which  it  bears.     Thus  it  is  said  that 
Nature  has  taken  some  objects  (e.g.  the  sea  and  air)  out 
of  the  possibility  of  private  ownership. 

3.  The  physical  ground  of  certain  relations  among 
men,  as  for  instance  of  blood  relationship  (cognationem 
natura  constituit).    So  the  rule  that  children  born  out  of 


'////;    A.tir   (>/•'  \ATURE  587 

wedlock  follow  the  condition  of  the  mother  is  ascribed 
to  Nature  (libcri  natiiralcs) ;  so  the  rule  that  persons 
under  puberty  should  have  a  guardian. 

4.  Reason,  whether  in  the  sense  of  logic  and  philo- 
sophical principle  on  the  one  hand,  or  as  meaning  what 
we  should  call  '  common  sense  '  on  the  other,  is  often 
denoted  by  the  term  Nature.     Nature  (it  is  said)  pre- 
scribes that  no  one  should  profit  by  harm  and  injury 
to  another,  and  that  whoever  bears  the  disadvantages 
of  a  thing  should  also  reap  the  advantages  of  it ;  and  Na- 
ture allows  a  buyer  to  make  a  profit  on  a  re-sale.    The 
expression  Natural  Reason  (naturalis  ratio)  is  commonly 
used  when  the  former  meaning  is  to  be  conveyed,  and 
Paulus  indeed  says  that  Natural  Reason  is  a  sort  of 
tacit  law.    To  use  the  term  Reason  as  equivalent  to  com- 
mon sense  and  convenience  comes  very  near  the  doc- 
trine that  Utility  is  the  basis  of  law,  and  the  word  utilitas ' 
is  frequently  employed  by  the  Romans. 

5.  Good  feeling  and  the  general  moral  sense  of  man- 
kind.   For  instance,  Nature  directs  that  parents  should 
be  supported  by  their  children,  and  that  a  freedman 
should  render  a  certain  respect  and  help  to  his  patron. 
Nature  prohibits  theft,  and  makes  certain  offences  (e.g. 
adultery)  disgraceful,  while  other  offences  are  not  neces- 
sarily base  (turpia).     So — and  this  is  an  interesting  il- 
lustration of  Roman  sentiment — it  is  against  Nature  to 
contemplate  the  probability  that  a  freeman  may  become 
a  slave — although  this  is  an  event  which  may  sometimes 
happen.    One  may  refer  either  to  this  or  to  the  preceding 
category  the  ascription  to  Nature  of  the  principle  that 
faith  must  be  kept  by  a  debtor,  even  where  he  has  not 
bound  himself  in  a    formal    way.       (Is   Natura   debet 
quern    iure  gentium  dare  oportet,    cuius  fidem   secuti 
sumus.) 

One  jurist  only,  Ulpian,  gives  a  yet  further  sense  to 
the  term  Law  of  Nature,  making  it  cover  those  instincts 
and  physical  relations  which  other  animals  have  in  com- 
mon with  man,  and  which  may  be  called  the  raw  mate- 


588  THE  LAW  OF  NATURE 

rial  upon  which  Custom  acts  *.  But  this  fancy  of  his, 
which  appears  now  and  then  in  other  ancient  writers  2, 
and  received  great  attention  in  the  Middle  Ages  because 
the  passage  was  embodied  in  Justinian's  Institutes,  is 
devoid  of  practical  importance  even  for  Ulpian's  own 
treatment  of  legal  topics.  It  has  been  much  ridiculed 
by  the  moderns,  but  has  recently  received  a  sort  of 
reinforcement  or  illustration  from  an  unexpected  quar- 
ter. Mr.  Darwin  has  suggested  that  the  origin  of  our 
moral  ideas  is  to  be  sought  in  the  accumulated  experi- 
ence of  animals,  which  in  the  course  of  long  ages  ripened, 
to  some  slight  extent,  in  the  higher  species,  and  ulti- 
mately ripened  far  more  completely  in  man,  into  the 
beliefs  and  usages  which  govern  the  life  of  primitive 
peoples,  and  out  of  which  morality  has  been  insensibly 
developed  in  comparatively  recent  times.  Upon  any 
such  hypothesis  the  gap  between  man  and  other  animals 
would  become-less  wide,  and  a  certain  community  might 
be  ascribed  to  them  with  man  in  what  may  be  called  the 
rudimentary  protoplasm  of  customary  law. 

In  its  practical  applications,  the  idea  of  Nature  or  the 
Law  of  Nature,  blent  with  the  idea  of  Equity  (for  the  two 
terms  are  in  some  departments,  and  in  the  mouths  of 
many  jurists,  equivalent  and  interchangeable),  extends 
itself  over  nearly  the  whole  field  of  law.  It  supplements 
or  modifies  the  relations  of  parents  and  children,  of  pa- 
trons and  freedmen,  and  even  of  slaves,  as  these  rela- 
tions had  been  established  by  the  ancient  strict  law  of 
Rome.  A  slave  is  to  ius  civile  merely  a  thing,  but  a  re- 
gard for  Nature  causes  him  to  be  treated  as  being  in 

»  l  Natural  Law  is  that  which  Nature  has  taught  all  animals ;  for  that  kind  of 
law  is  not  peculiar  to  mankind,  but  is  common  to  all  animals.  .  .  .  Hence  comes 
that  union  of  the  male  and  female  which  we  call  marriage  ;  hence  the  procreation 
and  bringing  up  of  children.' 

a  As,  for  instance,  in  Pliny  the  Elder's  ascription  to  the  lower  animals  of  moral 
sentiments  (Hist.  Nat.  viii.  5  ;  viii.  16, 19  ;  x.  52).  Michael  Drayton's  lines,  of  birds 
pairing  in  spring, — 

'  And  but  that  Nature  by  her  all-constraining  law, 

Each  bird  to  her  own  kind  this  season  doth  invite,'— 

hover  between  Ulpian's  '  Law  of  Nature '  and  the  l  Laws  of  Nature '  of  modern 
science. 


THE  LAW  OF  NATURE  589 

some  respects  a  person.  In  the  law  of  property,  of  in- 
heritance, of  obligations,  and  of  procedure,  a  great  many 
principles  drawn  from  this  source  have  been  embodied 
in  rules  which  qualify  or  supersede  the  rigour  of  the 
older  law  in  most  important  points.  It  is  only  by  ex- 
amining these  in  detail  that  the  skill,  and  tact,  and  sound 
judgement,  which  the  Romans  showed  in  working  out 
the  idea,  can  be  duly  appreciated.  To  enumerate  them 
here  would,  however,  be  impossible:  one  might  as  well 
try  to  enumerate  the  numerous  points  in  which  Equity 
has  affected  and  amended  the  common  law  of  England. 
Speaking  broadly,  the  Law  of  Nature  represented  to 
the  Romans  that  which  is  conformable  to  Reason,  to  the 
best  side  of  Human  Nature,  to  an  elevated  morality,  to 
practical  good  sense,  to  general  convenience.  It  is 
Simple  and  Rational,  as  opposed  to  that  which  is  Arti- 
ficial or  Arbitrary.  It  is  Universal,  as  opposed  to  that 
which  is  Local  or  National.  It  is  superior  to  all  other 
law  because  it  belongs  to  mankind  as  mankind,  and  is 
the  expression  of  the  purpose  of  the  Deity  or  of  the 
highest  reason  of  man.  It  is  therefore  Natural,  not  so 
much  in  the  sense  of  belonging  to  men  in  their  primitive 
and  uncultured  condition,  but  rather  as  corresponding 
to  and  regulating  their  fullest  and  most  perfect  social 
development  in  communities,  where  they  have  ripened 
through  the  teachings  of  Reason1.  But  if  any  disciple 
of  Bentham,  looking  not  at  the  sonorous  language  oc- 
casionally used  to  describe  its  origin,  but  at  its  practical 
applications,  calls  it  the  expression  of  good  sense  and 
good  feeling,  the  law  which  springs  from  an  enlightened 
view  of  Utility,  he  will  not  be  far  wrong,  as  indeed  the 
idea  of  practical  convenience  is  frequently  associated 
with  those  of  Nature  and  Reason  in  the  Roman  texts  2. 


1  This  is,  broadly  speaking,  the  view  of  the  Classical  jurists.  But  occasionally, 
especially  in  late  times,  phrases  are  used  which  point  to  primitive  societies  as  gov- 
erned by  the  natural  law  :  e.g.  Novell.  lust.  Ixxxix.  c.  12,  §  5. 

3  So  in  a  fragment  preserved  by  Dositheus,  a  jurist  of  classical  times  says  of  '  ius 
naturale  vel  gentium  ' — '  omnes  nationes  similiter  eo  utuntur  :  quod  enim  bonum 
et  aequum  est  omnium  utilitati  convenit.' 


590  THE  LAW  OF  NATURE 

A  modern  precisian  might  say  that  the  Romans  ought 
to  have  called  it  not  '  the  Law  of  Nature/  but  '  mate- 
rials supplied  by  Nature  for  the  creation  of  a  law/  a 
basis  for  law  rather  than  the  law  itself.  To  the  Romans, 
however,  such  a  criticism  would  probably  have  seemed 
trivial.  They  would,  had  the  distinction  been  pro- 
pounded to  them,  have  replied  that  they  knew  what  the 
critic  meant,  and  had  perceived  it  already ;  but  that  they 
were  concerned  with  things,  not  words,  and  having  a 
practical  end  in  view,  were  not  careful  about  logical  or 
grammatical  minutiae. 

This  conception,  or  at  any  rate  the  attempt  to  apply 
this  conception  to  Positive  Law,  would  seem  to  be  ex- 
posed to  two  dangers.  One  is  that  of  wasting  time  and 
pains  in  hunting  for  those  institutions  or  rules  which 
are  most  characteristic  of  man  in  the  earlier  stages  of 
his  progress,  or  which  have  been  in  fact  most  generally 
in  vogue  among  men.  This  danger  the  Roman  jurists 
completely  avoided.  Their  Law  of  Nature  had  nothing 
to  do  with  any  so-called  State  of  Nature,  and  they  never 
troubled  themselves  about  primitive  man,  leaving  him 
to  the  poets  and  the  philosophers.  And  though  they 
talked  of  their  ius  gentium  as  roughly  equivalent  to  their 
ius  naturae,  we  do  not  find  them  endeavouring  to  sup- 
port their  view  of  what  is  reasonable  and  natural  by 
instances  drawn  from  such  and  such  peoples  who  had 
adopted  the  rules  they  had  themselves  made  part  of 
their  ius  gentium1.  They  are  content  to  ascribe  to  ius 
gentium  that  which  is  so  obviously  reasonable  and  con- 
venient that  the  general  usage  of  mankind  approves  it, 
such  as  the  principle  that  the  shores  of  the  sea  are  open 
to  the  common  use  of  all  (a  principle  which,  however, 
English  and  Scottish  law  have  never  fully  admitted),  the 
principle  that  a  thing  which  has  no  owner  becomes  the 

1  Although  they  sometimes  dwell  on  the  fact  that  an  institution  is  to  be  found 
among  all  nations.  So  Gaius  observes  of  Guardianship,  '  Impuberes  in  tutela  esse 
omnium  civitatium  iure  contingit,  quia  id  natural!  ration!  conveniens  est  ut  is,  qui 
perfectae  aetatis  non  sit,  alterius  tutela  regatur  ;  nee  fere  ulla  civitas  est  in  qua  non 
licet  parentibus  liberis  suis  impuberibus  testamento  tutorem  dare '  (fnsf.  i.  189). 


THI:  i.  nr  or  \ATURE  591 

property  of  the  finder,  the  principle  that  a  debtor  ought 
to  pay  his  debts.  Redde  quod  debes  aeqitissima  vox 
est,  et  ins  gentium  prae  se  ferens. 

The  other  danger  is  that  the  idea  of  Nature,  as  the 
true  guide  to  the  making  and  interpreting  of  law,  may 
lead  to  speculative  vagueness,  and  that  the  identifica- 
tion of  Nature  with  Morality  may  tempt  the  legislator 
or  the  judge  into  efforts  to  enforce  by  law  duties  best 
left  to  purely  moral  sanctions.  This  danger  also  the 
Romans  escaped.  They  escaped  it  by  virtue  of  their 
eminent  good  sense  and  their  practical  training.  The 
lofty  precepts  of  morality  which  they  were  fond  of  pro- 
claiming, and  which  they  sometimes  declare  it  to  be  the 
duty  of  the  lawyer  to  teach  and  of  the  magistrate  to 
apply,  had  after  all  not  much  more  to  do  with  the  way 
in  which  they  built  up  the  law  than  the  flutings  of  the 
columns  or  the  carvings  on  the  windows  have  to  do  with 
the  solid  structure  of  an  edifice.  These  decorations 
adorned  the  Temple  of  Justice,  but  were  never  suffered 
to  interfere  either  with  its  stability  or  with  its  conveni- 
ence for  the  use  of  men.  In  point  of  fact,  the  rules  of 
Roman  law,  down  to  the  age  of  Constantine,  whose  suc- 
cessors, wanting  the  sage  advisers  of  an  earlier  day, 
tried  some  foolish  experiments,  furnish  a  model  of  the 
way  in  which  moral  principles  should  be  applied  to  posi- 
tive law.  Though  the  Romans  did  not  in  theory  draw 
any  very  clear  line  between  the  sphere  of  law  and  that 
of  morals,  they  succeeded  admirably  in  practice  in  keep- 
ing their  moral  zeal  on  the  safe  side  of  the  line  which 
divides  the  standard  of  conduct  which  the  State  may, 
and  that  which  it  had  better  not,  try  to  enforce ;  while 
they  certainly  did  impart  to  the  law  as  it  left  their  hands 
a  spirit  of  honour,  good  faith,  and  equitable  fairness 
which  modern  systems  have  never  surpassed,  and  which 
is  in  some  respects  higher  than  that  of  our  own  English 
law. 

The  Roman  jurists  of  the  first  three  centuries  of  the 
Empire  were  a  unique  phenomenon  in  the  history  of 


592  THE  LAW  OF  NATURE 

mankind,  and  they  had  a  unique  opportunity.  They 
were  at  once  the  makers,  the  expounders,  and  the  ap- 
pliers  of  law.  They  worked  for  the  whole  civilized 
world.  They  were  hampered  by  no  meddlesome  legis- 
latures, for  legislatures  did  not  exist,  and  hardly  at  all 
by  capricious  monarchs,  for  the  good  Emperors  en- 
couraged them,  while  the  voluptuaries,  as  well  as  the 
unlettered  soldiers,  left  them  alone.  Their  only  restraint 
was  that  useful  and  necessary  one  which  dwells  in  the 
deference  of  the  wise  for  one  another,  and  in  the  respect 
of  the  leaders  of  a  great  profession  for  the  opinion  of 
the  profession  as  a  whole.  They  were  not  indeed  philo- 
sopher-kings in  Plato's  sense,  but  they  were  sufficiently 
imbued  with  the  spirit  of  philosophy  to  value  principle 
and  to  rise  superior  to  prejudice.  Accordingly  they  were 
able  to  do  a  work  which  has  been  of  inestimable  value 
for  all  time,  since  it  has  become,  like  the  philosophical 
ideas  of  the  Greeks  and  the  religious  ideas  of  the  Se- 
mites, part  of  the  common  heritage  of  mankind.  Rome 
is  the  only  city  to  which  it  has  been  given  to  rule  the 
whole  of  the  civilized  world,  once  as  a  temporal,  once  as 
a  spiritual  power.  In  both  phases  she  welded  the  di- 
verse and  incongruous  elements  into  a  united  body, 
whose  elements,  even  when  they  had  again  been  dis- 
joined, retained  traces  of  their  former  union.  And  on 
both  occasions  it  was  largely  through  law  that  she 
worked,  the  ecclesiastical  law  of  her  later  period  being 
an  efflux  of  the  civil  law  of  her  earlier. 

We  have  now  traced  the  origin  and  growth  of  the 
conception  of  a  Law  of  Nature  in  the  ancient  world, 
and  have  perceived  how,  having  taken  shape  and  re- 
ceived an  ethical  colour  among  the  Greeks,  it  was  turned 
to  practical  account  by  the  Romans.  It  was  not  to  them, 
as  it  has  often  been  deemed  by  recent  English  writers, 
a  purely  negative  and  barren  conception,  nor  was  it 
wholly  a  destructive,  and,  if  the  expression  may  be  per- 
mitted, a  ground-clearing  conception.  Doubtless  a  large 
part  of  its  work  was  done  in  first  undermining  and  finally 


THE  LAW  OF  NATURE  593 

overcoming  the  traditional  authority  of  the  old  peculiar 
and  usually  cumbrous  Law  of  the  City  (ins  quiritinw), 
which  was  often  harsh  and  sometimes  arbitrary.  An- 
other part  was  done  in  explaining  old  rules  so  as  to 
amend  their  operation.  But  the  conception  of  Nature 
as  a  source  of  Law  was  also  a  corrective  and  expansive 
force,  not  merely  in  sweeping  away  what  had  become 
obsolete,  but  also  in  establishing  what  was  new  and 
suited  to  the  time.  It  found  a  solid  basis  for  law  in  the 
reason  and  needs  of  mankind,  and  it  softened  the  transi- 
tion from  the  old  to  the  new,  first  by  developing  the 
inner  meaning  of  the  old  rules  while  rejecting  their 
form,  extracting  the  kernel  of  reason  from  the  nut  of 
tradition,  and  secondly  by  appealing  to  the  common 
sense  and  general  usage  of  mankind,  embodied  in  the 
ius  gentium,  as  evidence  that  Nature  and  Utility  were 
really  one,  the  first  being  the  source  of  human  reason, 
the  latter  supplying  the  grounds  on  which  reason 
worked.  Thus  the  idea  of  Nature,  coupled  with  that 
of  customs  generally  observed  by  mankind,  which  em- 
bodied their  experience,  became  a  fertile  and  creative 
idea,  which  turned  the  law  of  a  city  into  the  law  of  the 
world,  and  made  it  fit  to  be  a  model  for  succeeding 
ages. 

VII.   THE  LAW  OF  NATURE  IN  THE  MIDDLE  AGES. 

When  the  succession  of  Roman  jurists  as  a  profes- 
sional class  came  to  an  end,  and  the  level  of  culture  in 
the  whole  community  declined  in  Western  Europe  after 
the  destruction  of  imperial  power  in  the  Western  pro- 
vinces, the  ecclesiastics,  among  some  of  whom  a  tincture 
of  legal  knowledge  remained,  naturally  identified  the 
law  of  Nature  with  the  law  of  God.  We  have  this  clearly 
expressed  in  the  passages  from  Isidore  of  Seville  (who 
wrote  early  in  the  seventh  century)  which  obtained  im- 
mense circulation  and  influence  by  being  incorporated 
(in  the  twelfth  century)  in  the  introductory  paragraphs 


594  THE  LAW  OF  NATURE 

of  the  Dccretum  of  Gratian,  the  oldest  part  of  the  col- 
lected Canon  Law.  Isidore  says  l :  '  All  laws  are  either 
divine  or  human.  The  divine  rest  upon  Nature,  the 
human  upon  custom;  and  the  latter  accordingly  differ 
among  themselves,  because  different  laws  have  pleased 
different  nations.'  Gratian  himself,  in  the  paragraph 
preceding,  says :  '  Mankind  is  ruled  by  two  things,  na- 
tural law  and  customs.  Natural  Law  is  that  which  is 
contained  in  the  law  and  the  gospel,  whereby  every  one 
is  commanded  to  do  to  another  that  which  he  would 
have  done  to  himself.'  This  identification,  already  sug- 
gested by  the  Stoics  and  by  some  of  the  Roman  jurists 
themselves  2,  was  inevitable  as  soon  as  Christianity  ap- 
peared on  the  scene.  St.  Paul,  as  we  have  seen,  recog- 
nized a  law  written  by  God  on  men's  hearts ;  St.  Augus- 
tine speaks  of  the  Eternal  Law  which  governs  the  City 
of  God.  Nature — that  is  to  say  the  Power  that  rules  all 
things,  the  Force  that  is  in  all  things — is,  to  a  Christian, 
God ;  as  St.  Chrysostom  says,  '  when  I  speak  of  Nature 
I  mean  God,  for  it  is  He  who  has  made  the  world  3.'  The 
idea  receives  its  final  expression  in  Dante's  identifica- 
tion of  the  Divine  Love  with  the  Force  that  pervades  the 
universe — 

'  L'Amor  che  muove  il  sol  e  le  altre  stelle.' 

Accordingly  the  scholastic  philosophers  posit  a  Law  of 
Nature  as  being  the  work  of  God.  St.  Thomas  of 
Aquinum  introduces  a  useful  distinction  which  exer- 

1  '  Omnes  leges  aut  divinae  sunt  aut  humanae.  Divinae  natura,  humanae  moribus 
constant,  ideoque  hae  discrepant,  quoniam  aliae  aliis  gentibus  placent.  Fas  lex 
divina  est:  ius  lex  humana.  Transire  per  agrum  alienum  fas  est,  ius  non  est.'— 
Dist.  Prima,  c.  i.  '  Humanum  genus  duobus  regitur,  natural!  videlicet  iure  et 
moribus.  Ius  naturale  est  quod  in  lege  et  evangelio  continetur,  quo  quisque  iube- 
tur  alii  facere  quod  sibi  vult  fieri  et  prohibetur  alii  inferre,  quod  sibi  nolit  fieri. 
Unde  Christus  in  Evangelio  "  Omnia  quaecunque  vultis  ut  faciant  vobis  homines, 
et  vos  eadem  facite  illis.  Haec  est  enim  lex  et  prophetae."  '  Here  the  Sermon  on 
the  Mount  is  taken  as  stating  the  Law  of  Nature. 

a  Cf.  the  citation  by  Marcian,  in  Dig.  i.  3,  2,  of  the  dictum  of  Demosthenes  (Adv. 
Aristog.  p.  774)  vofios  evpt)ju.a  KO.I  Siapov  0fov  ;  and  Justinian's  Institutes^  i.  2,  §  n 
1  Naturalia  iura,  quae  apud  omnes  gentes  peraeque  servantur,  divina  quadam  provi- 
dentia  semper  firma  atque  immutabilia  permanent.' 

3  orav  eiTrw  TTJV  <f>v<rt,v,  ©ebv  Ae'yw,  6  "yap  TTJI'  <t>v<ri.v  SrjjuuovpyTja'as  avrb?  eoric. 


THE  LAW  OF  NATURE  595 

cised  an  enduring  influence.  The  Eternal  Law  which 
governs  all  things  is  the  expression  of  the  Reason  of 
God,  the  supreme  Lawgiver.  That  part  of  it  which  is 
not  revealed,  but  is  made  known  to  man  by  his  own 
reason,  may  fitly  be  called  Natural  Law,  as  being  the 
outcome  of  human  reason,  itself  created  and  directed  by 
the  Divine  Reason.  Thus  the  sharing  in  the  Eternal 
Law  by  a  rational  creature  is  Natural  Law1.  And  so 
Suarez  says  that  the  Law  of  Nature  is  in  God  the 
Eternal  Law,  and  in  men  is  the  light  which  carries 
this  eternal  law  into  their  souls,  being  applied  by  con- 
science. 

I  cannot  here  pursue  an  inquiry  into  the  treatment  of 
these  notions  by  the  scholastic  theologians  and  philo- 
sophers, nor  by  their  successors  who  belong  to  the 
school  of  the  Catholic  Renaissance  in  the  sixteenth  cen- 
tury, for  the  subject  is  a  vast  one.  Neither  have  I  space 
to  deal  with  the  students  and  teachers  of  the  Roman 
Law  during  the  thirteenth,  fourteenth,  and  fifteenth  cen- 
turies, of  whom  however  it  may  be  said  that  Natural 
Law  has  in  their  pages  a  less  definite  character  than  it 
bore  to  the  ancient  jurists,  and  is  more  coloured  by  that 
ethical  atmosphere  which  they  found  in  the  treatment  of 
it  by  Cicero  and  Aristotle  and  by  such  ecclesiastical  au- 
thorities as  Gratian  and  St.  Thomas.  It  was  during 
these  centuries  less  widely  and  effectively  used  in  the 
sphere  of  pure  law  than  in  those  of  speculation  and  actual 
political  controversy.  In  these  latter  spheres  it  played 
a  great  part,  being  appealed  to  by  the  advocates  as  well 
of  imperial  as  of  papal  pretensions,  the  one  side  claiming 
its  support  for  the  temporal,  the  other  side  for  the 
spiritual  potentate.  All  admitted  that  it  stood  above 
both  these  powers,  and  some  maintained  that  where 
either  power  transgressed  it,  he  might  be.  lawfully  re- 
sisted by  his  subjects  2.  Now  and  then  princes  put  it 

>  Summa  Theologiat^  prima  secundae,  Q.  xciv.  2. 

a  On  this  subject  see  the  authorities  collected  and  luminously  expounded  by  Pro. 
fessor  Dr.  Gierke  in  bisjo&annes  Althusiut,  chap.  vi. 


596  THE  LAW  OF  NATURE 

forward  as  a  ground  for  legislation.  Philip  the  Fair  of 
France,  proposing  to  liberate  serfs,  says  (A.D.  1311)  that 
'  every  human  creature  formed  in  the  image  of  Our  Lord 
ought  by  natural  law  to  be  free.'  Now  and  then  a  jurist 
specifies  matters  in  which  it  limits  the  legislator's  power, 
as  Baldus  says,  neither  Emperor  nor  Pope  could  validly 
authorize  the  taking  of  usury1.  But  one  can  hardly 
say  that  the  idea  emerges  as  an  independently  forma- 
tive power  in  the  growth  either  of  the  Canon  Law  in 
Europe,  or  of  the  law  of  Islam  in  the  East,  for  the  ob- 
vious reason  that  ecclesiastical  systems  do  not  need  it. 
The  Bible  in  Christendom,  the  Koran  where  Islam  ruled, 
supplied  all  the  philosophical  basis  and  all  such  indica- 
tions of  the  Divine  Will  as  were  needed  to  give  law  a 
moral  character;  So,  although  the  term  is  indeed  fre- 
quently used  by  mediaeval  writers  of  all  types,  it  is  gene- 
rally used  with  a  theological  or  ethical  bearing.  Na- 
ture, except  in  such  a  sense  as  was  given  to  it  by  St. 
Paul,  or  in  such  expressions  as  were  sanctioned  by 
Aristotle  or  by  the  texts  of  the  jurists,  would  have 
sounded  strange,  and  might  have  savoured  of  hetero- 
doxy. As  the  Chancellor  says  in  the  second  part  of 
Goethe's  Faust — 

1  Natur  und  Geist !   so  spricht  man  nicht  zu  Christen  : 
Desshalb  verbrennt  man  Atheisten.' 

Yet  throughout  this  period  the  place  which  this  con- 
ception holds  and  the  function  which  it  discharges  in  the 
world  of  thought,  if  not  in  that  of  practice,  are  of  high 
import.  It  is  an  assertion  of  the  supremacy  of  the  eter- 
nal principles  of  morality,  of  the  duty  of  princes  to  obey 
those  principles,  of  the  right  of  citizens  to  defend  them, 
if  need  be  even  by  rebellion  or  tyrannicide.  It  proclaims 
the  responsibility  to  God  of  all  power,  whether  spiritual 
or  temporal,  and  the  indestructible  rights  of  the  indi- 

1  Gierke,  ut  supra.  Baldus  and  other  jurists  declare  that  the  Emperor  4  tenetur 
ratione  natural!,  cum  ius  naturae  sit  potentius  principatu,'  and  one  goes  so  far  as 
to  hold  him  to  be  also  bound  by  ius  gentium.  See  Arthur  Duck,  De  Usu  et  A  uthori- 
tate  luris  Civilis,  bk.  i.  chap.  iii.  §  12. 


THE  LAW  OF  NATURE  597 

vidual  human  being.  Finding  in  the  Divine  Justice  the 
ultimate  source  of  all  law,  it  imposes  a  restraint  upon 
the  force  which  positive  law  has  at  its  command,  and 
sets  limits  to  the  validity  of  positive  laws  themselves. 
Whether  or  no  the  individualistic  spirit  of  the  Teutonic 
races  contributed  to  this  remarkable  change  from  the 
attitude  of  the  Roman  lawyers  is  a  question  I  will  not 
attempt  to  discuss.  But  it  is  clear  that  the  influence  of 
Christian  teaching  had,  even  under  a  dominant  and  per- 
secuting ecclesiastical  system,  stimulated  the  vindication 
in  the  name  of  Natural  Law  of  principles  which  are  the 
foundation  both  of  civil  and  of  religious  liberty. 


VIII.    THE  LAW  OF  NATURE  IN  MODERN  TIMES. 

When  the  European  mind,  stimulated  by  Greek  litera- 
ture and  by  the  ecclesiastical  revolt  of  the  sixteenth 
century,  as  well  as  by  a  group  of  coincident  external 
causes,  began  to  play  freely  round  the  great  subjects 
of  thought,  a  still  wider  career  opened  for  this  ancient 
conception.  The  history  of  that  career,  however,  be- 
longs to  the  domain  of  philosophy  and  of  political 
science  rather  than  to  that  of  jurisprudence.  Though 
it  was  chiefly  from  the  Roman  texts  that  the  men  of  the 
Renaissance  and  Reformation  eras  drew  their  notions 
of  Nature  and  natural  law1,  and  though  the  term  ius 
gentium  reappears  as  indicating  the  recognition  of  Na- 
tural Law  by  mankind  at  large,  the  speculations  which 
these  notions  inspired  turned  largely  upon  such  ques- 
tions as  the  origin  of  law  in  general,  a  point  which,  as 
already  observed,  had  not  much  occupied  the  Romans, 
and  (still  more)  upon  the  source  of  authority  and  politi- 
cal power,  and  on  the  right  of  any  constituted  authority 
to  demand  obedience.  The  systems  of  the  Middle  Ages, 

1  The  Romans  had  been  content  to  derive  law  (see  Essay  X,  p.  525)  from  the  will 
of  the  people,  whether  expressed  directly  by  legislation  or  tacitly  by  customs,  and 
this  doctrine  continued  to  be  enounced  under  the  autocracy  of  Justinian  much  as  it 
had  been  in  Republican  times. 


598  THE  LAW  OF  NATURE 

which  deduced  the  powers  of  the  Pope  from  Christ's 
words  to  St.  Peter,  and  the  powers  of  the  Emperor 
either  directly  from  God  or  mediately  through  the  Pope, 
and  which  found  the  source  of  all  other  spiritual  and 
temporal  power  in  some  sort  of  delegation  from  one 
or  other  of  these  potentates,  had  now  vanished,  and 
thinkers  were  much  concerned  to  find  a  new  and  sounder 
foundation  on  which  to  plant  the  Monarch  and  the  State. 
Thus  Nature  came  to  play  a  new  part :  and  presently 
there  appeared  theories  regarding  an  original  State  of 
Nature,  a  conception  not  necessarily  connected  with 
that  of  the  Law  of  Nature,  yet  one  which  has  historically 
been  closely  associated  therewith.  This  newly-invented 
State  of  Nature  was  neither  the  Golden  Age  of  Hesiod, 
nor  the  Saturnia  r-egna  of  Virgil,  nor  the  brutish  sava- 
gery (mutum  et  turpe  pecus)  of  Horace.  The  man  of 
the  State  of  Nature  was  highly  intelligent,  and  he  was 
also  highly  self-assertive.  In  Hobbes  he  appears  as  in 
perpetual  war  with  his  fellows  1 ;  and  that  ingenious  and 
uncompromising  philosopher  finds  in  this  fact  the  basis 
of  his  theory  of  the  State,  holding  that  men,  in  order  to 
get  rid  of  their  distracting  strife,  agreed  with  one  an- 
other to  surrender  all  their  natural  rights  to  get  what 
they  can  for  themselves  by  force  into  the  hands  of  a 
Monarch,  who  thereby  acquired  a  perpetual  title  to  the 
obedience  of  all ;  the  contract,  since  not  made  with  him, 
being  nowise  dissoluble  in  respect  of  any  misfeasance 
on  his  part.  Locke,  on  the  other  hand,  argues  for  a 
Natural  Law  which  issues  from  Reason,  is  prior  to  all 
governments,  and  being  superior  to  them  entitles  men 
to  vindicate  their  natural  rights  against  tyranny.  With 
him,  therefore,  as  with  most  thinkers  of  the  seventeenth 
and  eighteenth  (and  indeed  also  of  earlier)  centuries, 
Natural  Law,  being  the  offspring  of  Reason  and  the 
foundation  of  Natural  Rights,  is  the  ally  of  freedom.  It 
is  invoked,  under  the  name  of  Natural  Right,  by  the 

1  With  Hobbes  compare  the  view  of  Spinoza,  Tractattts  Theologico-Politicus, 
cap.  xvi. 


THE  LAW   Or  \ATURE  599 

framers  of  the  Declaration  of  Independence  in  1776,  and 
therewith  enters  the  field  of  modern  politics  as  a  con- 
queror. Contemporaneously  the  doctrine  was  being 
spread  over  the  Old  World  by  Rousseau  in  his  theory  of 
the  State  of  Nature  and  the  Social  Contract  (first  pub- 
lished in  1762) :  and  it  presently  became  the  basis  of  the 
Declaration  of  the  Rights  of  Man  made  by  the  French 
Convention  in  1789. 

The  old  theory  had  now  developed  into  a  destructive 
political  force.  Any  one  can  see  to-day  that  this  revolu- 
tionary quality  was  always  latent  in  it :  the  singular  thing 
is  that,  unlike  most  revolutionary  ideas,  it  should  have 
kept  the  explosive  element  so  long  dormant.  That 
which  had  been  for  nearly  two  thousand  years  a  harm- 
less maxim,  almost  a  commonplace  of  morality,  became 
in  the  end  of  the  eighteenth  century  a  mass  of  dynamite, 
which  shattered  an  ancient  monarchy  and  shook  the 
European  Continent.  Liberty,  Equality,  Fraternity,  are 
virtually  implied  in  the  Law  of  Nature  in  its  Greek  no 
less  than  in  its  French  dress.  They  are  even  imbedded 
in  the  Roman  conception,  but  imbedded  so  deep,  and 
overlaid  by  so  great  a  weight  of  positive  legal  rules  and 
monarchical  institutions  as  to  have  given  no  hint  of  their 
tremendous  possibilities. 

Let  us  return  from  this  glance  at  the  political  history 
of  the  conception  to  note  three  directions  in  which  it 
has  acted,  in  modern  times,  within  the  sphere  of  law 
proper. 

The  first  of  these  is  its  action  upon  the  law  of  England. 
Our  system  of  Equity,  built  up  by  the  Chancellors,  the 
earlier  among  them  ecclesiastics,  takes  not  only  its  name 
but  its  guiding  and  formative  principles,  and  many  of  its 
positive  rules,  from  the  Roman  aequitas,  which  was  in 
substance  identical  with  the  Law  of  Nature  and  the  ius 
gentium.  For  obvious  reasons  the  Chancellors  and  Mas- 
ters of  the  Rolls  did  not  talk  much  about  Nature,  and 
still  less  would  they  have  talked  about  ius  gentium.  They 
referred  rather  to  the  law  of  God  and  to  Reason.  But 


600  THE  LAW  OF  NATURE 

the  ideas  were  Roman,  drawn  either  from  the  Canon 
Law,  or  directly  from  the  Digest  and  the  Institutes,  and 
they  were  applied  to  English  facts  in  a  manner  not  dis- 
similar from  that  of  the  Roman  jurists.  The  very  name, 
Courts  of  Conscience,  though  the  conscience  may  in 
the  immediate  sense  have  been  the  King's,  suggests 
that  moral  element  on  which  the  Romans  insisted  so 
strongly;  and  the  wide,  sometimes  almost  too  wide, 
discretionary  power  which  Equity  judges  exercised, 
finds  its  prototype  in  the  passages  in  Roman  texts  which 
refer  to  natural  equity  as  the  consideration  which  guides 
the  judge  in  qualifying,  in  special  cases,  the  normal 
strictness  of  law.  A  passage  in  the  remarkable  little 
book  called  Doctor  and  Student,  written  by  Christopher 
St.  German  early  in  the  sixteenth  century,  observes  that 
the  term  *  Law  of  Nature '  is  not  much  employed  by 
English  common  lawyers,  who  generally  prefer  (It  is 
remarked)  to  talk  of  the  Law  of  Reason,  and  to  say  that 
such  and  such  a  rule  is  grounded  in  reason,  or  that 
reason  points  to  such  and  such  a  conclusion.  Never- 
theless the  author  recognizes  the  Law  of  Nature  or 
Reason  as  one  of  the.  three  departments  of  the  Law 
Eternal  or  Will  of  God,  which  is  made  known  to  man 
partly  by  Reason,  partly  by  Divine  revelation  in  the 
Scriptures,  partly  by  the  orders  of  princes  or  of  the 
Church,  having  an  authority  derived  from  God.  Some 
(it  is  added)  say  that  all  the  law  of  England  is  part  of 
the  law  of  Reason;  but  St.  German  prudently  doubts 
whether  this  can  be  proved.  However,  we  have  here 
another  evidence  of  the  influence  of  the  old  conception, 
and  even,  in  the  reference  to  a  general  Law  of  Nature 
shared  in  by  unreasonable  creatures  ('  for  all  unreason- 
able creatures  live  under  a  certain  rule  to  them  given 
by  Nature,  necessary  for  them  to  the  consideration  of 
their  being '),  a  recurrence  of  the  old  notion  counte- 
nanced by  Ulpian,  that  the  Law  of  Nature  extends  to  the 
lower  animals  as  well  as  to  mankind.  Nor  are  dicta  of 
English  judges  referring  to  the  Law  of  Nature  wanting. 


THE  LAW  OF  NATURE  601 

Yelverton,  under  Edward  the  Fourth,  says  that  in  the 
absence  of  authority  the  judges  '  should  resort  to  the 
Law  of  Nature  which  is  the  ground  of  all  laws.'  And 
the  law  merchant,  i.e.  the  customs  commonly  observed 
by  traders  of  divers  countries,  is  referred  to  as  part  of 
the  Law  of  Nature  by  Lord  Chancellor  Stillington  in 
the  same  reign1.  Here  we  have  the  old  identification 
of  ius  naturae  and  ins  gentium  which  was  beginning  in 
Cicero's  days.  Still  later,  the  idea  reappeared  in  the 
doctrine  that  as  the  Law  of  Nature  is  the  foundation 
of  all  law,  positive  enactments  plainly  repugnant  to  it 
or  to  C  mmon  Right  and  Reason  (an  equivalent  expres- 
sion) ought  to  be  held  invalid.  Dicta  to  this  effect  were 
delivered  by  Lord  Coke  and  by  Lord  Hobart,  and  were 
approved  by  Lord  Holt ;  though  little  (if  any)  effect  has 
ever  been  given  to  them.  Similar  references  to  the 
'  eternal  principles  of  justice  '  as  capable  of  overruling 
the  acts  of  State  legislatures  may  occasionally  be  gleaned 
from  the  reports  of  cases  decided  by  American  State 
Courts.  Blackstone,  repeating  Cicero,  declares  that 
'  the  Law  of  Nature  is  binding  over  all  the  globe  in  all 
countries :  no  human  laws  are  of  any  validity  if  contrary 
to  this  2  ' ;  and  he  ascribes  to  '  natural  reason  and  the 
just  construction  of  law  3  '  the  extension  which  his  con- 
temporary, Lord  Mansfield,  gave  to  the  enforcement  of 
implied  contracts  3.  So  we  find  the  Indian  Civil  Proce- 
dure Code  of  1882  laying  down  that  a  foreign  judgement 
is  not  operative  as  a  bar  if  it  is,  in  the  opinion  of  the 
Court  which  deals  with  the  question,  '  contrary  to  na- 
tural justice.'  But  the  chief  practical  applications  in  re- 
cent times  of  the  ancient  conception  have,  very  appro- 
priately, arisen  where  European  judicial  administration 
has  been  brought  into  contact  with  foreign  semi-civi- 
lized peoples  on  whom  the  law  of  their  European  con- 
querors could  not  properly  be  imposed.  Thus  in  British 

1  I  owe  these  references  to  Sir  F.  Pollock's  Essay  in  Columbia  Law  Review, 
already  mentioned. 

2  Commentaries,  Introd.  §  2. 

3  Ibid.  bk.  iii.  chap.  ix. 


602  THE  LAW  OF  NATURE 

India  the  Courts  have  been  directed  to  apply  '  the  princi- 
ples of  justice,  equity,  and  good  conscience  l  '  in  cases 
where  no  positive  law  or  usage  is  found  to  be  applicable. 
The  second  line  of  action  is  the  part  which  the  terms 
ius  naturae  and  ius  gentium  played  in  the  creation  of 
International  Law.  That  branch  of  jurisprudence  has 
a  twofold  origin.  It  is  due  partly  to  customs  which 
grew  up  among  maritime  nations  in  the  course  of  trade, 
together  with  the  usages  and  understandings  which 
formed  themselves  in  the  diplomatic  intercourse  of 
States,  partly  to  the  doctrines  thought  out  and  delivered 
by  a  succession  of  legal  writers,  of  whom  the  most  fa- 
mous are  Hugo  Grotius,  Albericus  Gentilis,  Leibnitz, 
and  Puffendorf.  These  thinkers,  finding  that  large  parts 
of  the  field  of  international  relations  were  not  covered 
by  pre-existing  custom,  or  that  the  existing  customs 
were  often  discrepant,  were  obliged  to  seek  for  some 
general  and  permanent  basis  whereon  to  build  up  a  sys- 
tem of  positive  rules.  This  basis  could  not  be  looked  for 
in  the  laws  of  any  State  or  States,  because  no  such  laws 
could  have  force  beyond  the  limits  of  those  States,  and 
that  which  was  needed  was  something  which  all  States 
were  to  observe.  Neither  could  it  be  expressly  deduced 
from  the  Imperial  Roman  law,  because  the  Romano- 
Germanic  Empire  had  become  a  mere  shadow  of  its 
former  self,  and  the  old  Roman  law,  being  the  law  of 
a  State  (though  a  World-State),  did  not  contain  all  the 
necessary  materials,  not  to  add  that  anything  impe- 
rial was  in  the  earlier  part  of  the  seventeenth  century 
regarded  with  suspicion  by  Protestants.  Accordingly, 
Grotius  and  his  successors  recurred  to  the  Law  of  Na- 
ture as  being,  according  to  the  theory  of  the  ancient 
Roman  jurists,  a  law  grounded  in  reason  and  valid  for 
all  mankind.  They  used  it  copiously,  and  some  of  them 
called  their  writings  '  Treatises  on  the  Law  of  Nature 

1  See  on  this  subject  Sir  C.  P.  Ilbert's  Government  of  India,  chap.  vi.  The  ex- 
pression '  equity  and  good  conscience '  in  this  connexion  is  as  old  as  the  Charter  to 
the  E.  India  Company  of  1683  ;  ibid.  chap.  i.  p.  21. 


THE  LAW  OF  NATURE  603 

and  of  Nations,'  using  the  old  phrase  ius  gentium  1  in 
what  began  to  be  taken  as  a  new  sense  2.  It  was  indeed 
their  wish  to  represent  this  Law  of  Nature  as  being 
essentially  a  Law  for  the  Nations,  i.e.  a  law  governing 
the  intercourse  of  nations.  There  had  in  fact  been  al- 
ways a  close  connexion  between  the  two  conceptions. 
For  although  the  Roman  jurists  of  imperial  times  had 
employed  the  term  '  Law  of  the  Nations  '  to  denote,  not 
the  law  applicable  between  nations,  but  a  part  of  the  law 
which  was  applied  within  the  Roman  dominions,  still 
they  had  held  their  ins  gentium  to  have  been  not  only 
created  by  the  customs  of  the  nations  of  the  world,  but 
therewith  also  binding  on  nations  generally,  and  to  be 
indeed  (save  in  some  special  points)  a  concrete  embodi- 
ment of  the  law  which  Natural  Reason  gives  to  all  man- 
kind. Thus  the  name  '  Law  of  Nature  and  Nations  '  be- 
came well  settled;  and  it  is  only  in  our  own  days  that 
the  more  precisely  descriptive  (if  not  quite  satisfactory) 

1  When  he  uses  the  phrase  ius  gentium,  Grotius  dwells  on  the  fact  that  its  force 
springs  from  the  Will  of  the  Nations  which  use  it,  and  he  observes  that  when  it  is 
ascribed  to  the  will  of  all  nations  it  is  practically  ius  naturale,  but  that  there  is 
much  of  it  which  rests  on  the  will,  not  of  all,  but  only  of  many  nations,  since  some- 
times we  find  a  ius  gentium  holding  good  in  one  part  of  the  world  which  does  not 
exist  in  other  parts. 

2  Grotius,  who  (differing  but  little  from  the  old  schoolmen)  defines  the  eternal 
and  immutable   Law  of  Nature  as  'dictatum  rectae  rationis,  indicans  actui  alicui 
ex  eius  convenientia  aut  disconvenientia  cum  ipsa  naturali  ratione  inesse  moralem 
turpitudinem  aut  necessitatem  moralem,  ac  consequenter  ab  auctore  naturae  Deo 
talem  actum  aut  vetari  aut  praecipi,'  distinguishes  from  it  the  more  arbitrary  laws 
of  God  (ius  voluntarium)  which  God  may  change,  whereas  He  cannot  change  His 
own  Natural  Law  any  more  than  He  can  make  two  and  two  anything  but  four. 
In  another  place  he  observes  that  Human  Nature  itself  is  the  mother  of  natural 
law,  and  (through  contract)  great-grandmother  of  civil  (=  positive)  law.     '  Natu- 
ralis  iuris  mater  est  ipsa  humana  natura,  quae  nos,  etiamsi  re  nulla  indigeremus,  ad 
societatem  mutuam  appetendam  ferret'  (here  repeating  Aristotle),  'civilis  vero 
iuris  mater  est  ipsa  ex  consensu  obligatio,  quae  cum  ex  naturali  iure  vim  suam 
habeat,  potest  natura  huius  quoque  iuris  quasi  proavia  dici '  (Proleg.  9.  16).    He  had 
just  before  said,  '  Cum  iuris  naturae  sit  stare  pactis,  necessarius  enim  erat  inter 
homines  aliquis  se  obligandi  modus,  neque  vero  alius  modus  naturalis  fingi  potest ; 
ab  hoc  ipso  fonte  iura  civilia  fluxerunt.    Nam  qui  se  coetui  alicui  aggregaverant, 
aut  homini  hominibusque  subiecerant,  hi  aut  expresse  promiserant,  aut  ex  negotii 
natura  tacite  promisisse  intelligi,  secuturosse  id  quod  aut  coetus  pars  maior,  aut  hi, 
quibus  delata  potestas  erat,  constituissent.'     His  ius  divinum  voluntarium  is  di- 
vided into  that  part  which  was  delivered  by  God  to  all  mankind  at  the  Creation, 
after  the  Flood,  and  at  Christ's  coming,  and  that  part  which  was  delivered  to 
Israel  alone.    It  it  therefore  Revealed  Law,  and  so  different  from  the  Law  of 
Nature. 


604  THE  LAW  OF  NATURE 

term  '  International  Law '  has,  in  superseding  the  older 
name,  acquired  a  general  acceptance. 

Thirdly,  the  expression  Law  of  Nature  has,  within 
comparatively  recent  times,  obtained  in  Germany, 
France,  and  Italy,  the  meaning  of  the  Philosophy  of 
Law,  that  is  to  say,  the  metaphysical  basis  of  legal  con- 
ceptions and  of  the  most  general  legal  doctrines.  Some 
observations  will  be  found  elsewhere  in  this  volume  1 
upon  this  Naturrecht  or  Droit  Naturel,  to  which  much 
labour  and  thought  have  been  devoted  by  Continental 
writers,  though  very  little  by  those  of  England  or  of 
the  United  States.  Whatever  value  the  works  of  these 
writers  may  have  for  metaphysics  or  ethics,  they  shed 
comparatively  little  light  upon  law  in  its  proper  sense. 
The  study  of  Law  in  general  seems  nowadays  likely  to 
be  practically  useful  chiefly  on  its  concrete  side,  as  what 
the  Romans  call  a  ius  gentium,  that  is  to  say,  as  a  collec- 
tion and  examination,  a  criticism  and  appraisement  of 
the  rules  adopted  by  civilized  nations  on  topics  with 
which  the  legislation  of  all  or  most  of  such  nations  has 
to  deal.  In  other  words,  Comparative  Jurisprudence 
promises  more  fruit  than  abstract  speculation  on  the 
foundations  of  law. 

IX.    CONCLUSION. 

Except  from  the  lips  of  the  Continental  theorists  just 
referred  to,  we  now  seldom  hear  the  term  Law  of  Na- 
ture. It  seems  to  have  vanished  from  the  sphere  of  poli- 
tics as  well  as  from  positive  law.  A  phrase  which  was, 
in  the  eighteenth  century,  a  potent  source  of  inspiration 
to  some  and  a  tocsin  of  alarm  to  others,  is  not  now  in- 
voked by  either  of  the  two  schools  of  thought  which 
condemn,  or  seek  to  overthrow,  existing  institutions. 
The  Social  Democrats  do  not  appeal  to  Nature,  perhaps 
because  they  have  realized  that  there  never  was  a  state 
of  society  in  which  all  property  was  held  in  common  by 

i  See  Essay  XII. 


THE  LAW  OF  NATURE  605 

large  organized  communities,  and  perhaps  also  because 
they  feel  that  so  complex  a  system  as  they  desire  could 
not  well  bo  described  as  natural.  Anarchists  do  not 
appeal  to  the  Law  of  Nature,  because  their  quarrel  is 
with  law  altogether,  and  those  among  them  who  are 
educated  enough  to  desire  to  find  a  philosophical  basis 
for  their  doctrines  are  also  educated  enough  to  feel  and 
honest  enough  to  admit  that  history,  which  knows  to-day 
far  more  about  primitive  man  than  she  did  a  century  ago, 
would  afford  no  such  basis  in  any  state  of  nature  she 
could  possibly  set  before  us. 

Nevertheless  the  notion  sometimes  appears,  and  pro- 
perly appears,  in  unexpected  places.  The  British  Order 
in  Council  for  Southern  Rhodesia,  of  October  20,  1898, 
directs  the  Courts  of  that  territory  to  be  '  guided  in 
civil  cases  between  natives  (i.e.  Kafirs)  by  native  law, 
so  far  as  that  law  is  not  repugnant  to  natural  justice  or 
morality,  or  to  any  Order  made  by  Her  Majesty  in 
Council.' 

Whether  this  time-honoured  conception  has  or  will 
hereafter  have  any  practical  value  for  the  modern  world 
is  a  further  question,  but  one  for  conjecture  rather  than 
discussion.  We  have  seen  what  good  work  it  did  for 
the  ancient  world  in  breaking  down  race  prejudices, 
and  in  particular  for  the  Roman  jurists  in  giving  them 
a  philosophical  ideal  towards  which  they  could  work 
in  expanding  and  refining  the  law  of  the  Empire.  Nor 
should  we  forget  that  in  later  times  it  has  sometimes 
stimulated  resistance  to  oppression,  and  has  corrected 
the  tendency,  always  present  among  lawyers  and  in  a 
ruling  class,  to  defer  unduly  to  tradition  and  to  defend 
institutions  which  have  become  incompatible  with  rea- 
son, and  hurtful  to  the  common  interest.  This  kind  of 
work  may  not  seem  to  be  needed  from  the  old  idea  in 
our  own  times.  There  is  not  much  risk,  either  in  Europe 
or  in  North  America,  that  tradition  will  check  reform, 
or  that  institutions  will  be  respected  and  maintained 
merely  because  they  exist.  But  our  planet  may  expect, 


606  THE  LAW  OF  NATURE 

even  according  to  the  most  pessimistic  physicists,  to 
last  for  millions  of  years.  Who  can  say  that  an  idea 
so  ancient,  in  itself  simple,  yet  capable  of  taking  many 
aspects,  an  idea  which  has  had  so  varied  a  history  and 
so  wide  a  range  of  influence,  may  not  have  a  career  re- 
served for  it  in  the  long  future  which  still  lies  before  the 
human  race  ? 


XII 

THE   METHODS   OF   LEGAL 
SCIENCE 

WHOEVER,  having  heard  the  Roman  law  praised  as 
a  philosophical  system,  enters  upon  the  study  of  it,  and 
peruses  either  the  Corpus  luris  Civilis  or  the  writings 
of  modern  German  civilians,  will  presently  find  himself 
asking,  Where  is  the  legal  philosophy  of  the  Romans 
to  be  found?  By  which  of  them  is  the  subject  treated 
in  the  abstract?  Where  are  those  general  views  on 
the  nature  and  essence  of  law  with  which  a  philosophical 
treatment  of  it  ought  to  begin?  And  where  is  that 
theory  of  the  historical  evolution  and  development  of 
law  which  represents  another  method  of  treating  juris- 
prudence in  a  scientific  spirit? 

There  is  scarcely  anything  answering  to  the  student's 
expectations,  either  in  the  original  Roman  texts,  or  in 
those  modern  books  wherein  the  scattered  rules  and 
maxims  of  the  ancient  jurists  have  been  rearranged  in 
systematic  form.  In  the  proem  and  introductory  title 
of  Justinian's  Institutes  and  in  the  first  few  titles  of  his 
Digest  may  be  found  some  few  dicta,  more  sonorous 
than  exact,  about  Justice  and  Nature  and  the  origin  of 
law.  Nothing  more  in  the  Corpus  luris  nor  in  any  other 
of  the  few  old  legal  writings  that  have  survived.  There 
is  no  trace  that  any  lawyer  ever  composed  a  treatise  on 
that  which  we  in  England  call  General  Jurisprudence, 
and  which  the  Germans  call  Rechtsphilosophie  or  Natur- 


608  THE  METHODS  OF  LEGAL  SCIENCE 

recht  (Philosophic  de  Droit,  Droit  Naturel).  Cicero, 
who  at  one  time  intended  to  write  a  book  on  the  civil 
law,  throws  out  some  remarks  on  the  subject,  but  these 
are  rather  philosophical  than  legal,  and  it  would  seem 
either  that  no  later  philosopher,  whether  Greek  or 
Roman,  whether  Academic  or  Stoic,  followed  in  this 
path,  or  else  that  the  treatises  of  those  who  did  were  not 
thought  worthy  of  being  preserved,  or  even  of  being 
quoted  by  the  compilers  of  Justinian's  Digest. 

This  absence  of  what  the  enlightened  modern  lay- 
man, though  certainly  not  the  professional  English 
lawyer,  expects  in  a  refined  and  comprehensive  system 
of  jurisprudence,  raises  the  question  which  those  who 
approach  the  study  of  law,  especially  in  a  university, 
doubtless  often  put  to  themselves — Has  the  Roman  law 
suffered  from  the  want  of  a  foundation  of  legal  philo- 
sophy, or  is  that  foundation  really  needless,  and  can  a 
practically  useful  and  scientifically  symmetrical  system 
of  law  exist  without  it  ? 

In  order  to  answer  this  question  let  us  consider  what 
is  meant  by  the  Philosophy  of  Law,  or  the  Science  of 
Law  in  general,  conceptions  to  which  it  might  be  con- 
venient to  restrict  the  terms  Jurisprudence  (or  General 
Jurisprudence)  hitherto  somewhat  laxly  used1,  and 
what  are  the  proper  relations  of  such  a  science  on  the 
one  hand  to  a  working  system  of  law,  and  on  the  other 
hand  to  the  principles  and  considerations  which  guide 
the  legislator. 

Seeing  that  in  each  of  the  so-called  moral  or  social 
or  political  sciences  the  essential  characteristic  is  its 
method,  and  that  it  is  by  its  possession  of  a  method  that 
its  claims  to  be  a  science  must  be  tried,  we  had  better 
begin  by  inquiring  what  method  or  methods  the  science 
of  law  in  general  recognizes  and  applies ;  and  whether, 
if  there  be  more  than  one,  any  one  of  these  is  entitled 
to  be  deemed  the  right  method.  As  law  is  a  science 

1  As  has  been  proposed  by  Dr.  Holland  i*  his  admirable  Elements  of  Jurispru- 
dence. 


THE  METHODS  OF  LEGAL  8CIE\<'i:  609 

directed  to  practice,  the  test  of  Tightness  will  evidently 
be  the  practical  utility  of  the  method  in  producing  a 
system  of  lav  which  shall  be  symmetrical,  harmonious, 
and  suited  to  the  needs  of  the  people  whose  social  rela- 
tions it  has  to  adjust  and  regulate. 

Four  methods  are  commonly  spoken  of  as  employed 
in  legal  science,  being  the  following: — 

The  Metaphysical  or  a  priori  method. 

The  Analytic  method. 

The  Historical  method. 

The  Comparative  method. 

This  classification  is  doubtless  open  to  criticism,  but 
being  in  actual  use,  it  may  serve  our  present  needs. 

The  Metaphysical  method,  which,  without  stopping 
to  search  for  a  definition,  we  may  describe  as  being  the 
method  which  most  German,  French,  and  Italian  writers 
on  the  Philosophy  of  Law  or  the  '  Law  of  Nature  '  have 
adopted,  begins  by  investigating  the  abstract  ideas  of 
Right  and  Law  in  their  relation  to  Morality,  Freedom, 
and  the  hiin^an  Will  generally.  It  may  thus  be  regarded 
as  that  branch  of  metaphysics,  of  psychology,  of  ethics, 
perhaps  also  of  natural  theology  (according  to  the  de- 
limitation of  these  departments  of  inquiry  which  any 
one  may  adopt),  which  concerns  itself  with  the  civil  re- 
lations of  men  to  one  another  in  the  most  general  and 
abstract  form  of  those  relations.  It  proceeds  to  deal 
with  the  fundamental  legal  conceptions  or  categories  of 
the  subject,  such  as  Sovereignty,  Obedience,  Right, 
Claim,  Duty,  Injury,  Liability,  and  with  the  notions  in- 
volved in  certain  fundamental  and  universal  legal  insti- 
tutions such  as  the  Family,  Property,  Inheritance,  Mar- 
riage, Contract,  in  each  case  endeavouring  to  discover 
the  ethical  or  psychological  basis  of  the  conception  or 
institution,  and  to  build  up  the  institution  in  its  simpli- 
city, purity,  and  perfection  on  that  basis,  determining 
the  form  which  it  ought  to  take — that  is  to  say,  which 
God  or  Nature  designed  it  to  take — in  conformity  to  its 
essence  and  indwelling  creative  principle.  In  the  lan- 
39 


610  THE  METHODS  OF  LEGAL  SCIENCE 

guage  of  Plato,  it  seeks  to  discover  and  describe  the 
Idea  (ciSos)  of  the  conception  or  institution.  In  par- 
ticular, this  method  treats  the  notion  of  Right  from  all 
possible  sides,  connecting  it  with  the  Deity,  with  na- 
ture in  general,  with  man's  nature,  with  the  family,  with 
the  primordial  social  and  political  relations  of  men,  and 
endeavours  in  like  manner  to  determine  the  conception 
of  Duty  and  the  essence  of  Moral  Obligation,  and  the 
reasons  why  Obligation  attaches  to  certain  human  rela- 
tions, whether  it  springs  out  of  these  relations,  e.g.  out  of 
those  of  the  Family,  or  whether,  coming  from  some 
other  source,  it  gives  to  them  a  new  moral  quality.  With 
certain  philosophers  the  method  extends  itself  to  poli- 
tics, and  discusses  questions  some  of  which  hardly  be- 
long to  the  legal  sphere,  e.g.  the  rights  of  majorities  as 
against  minorities ;  the  grounds  on  which  a  ruler  may 
demand  submission,  or  those  on  which  subjects  may 
properly  resist  or  depose  a  ruler ;  the  relations  of  civil 
authority  to  ecclesiastical  authority,  and  the  limits 
within  which,  in  case  of  conflict,  obedience  is*  due  to  one 
or  to  the  other,  perhaps  even  the  limits  within  which  the 
legislator  may  fitly  enforce  duties  primarily  moral. 

The  writers  who  have  followed  this  method  may  be 
divided  into  two  classes.  Some  remain  in  the  field  of 
abstractions.  Positing  a  few  extremely  general  ideas 
or  principles,  they  develop  out  of  these  by  way  of  de- 
duction or  explication  the  rest  of  their  doctrine  down 
to  such  legal  details,  usually  scanty,  as  they  condescend 
to  give.  The  whole  system  is,  or  seems  to  be,  spun  out 
of  the  author's  fundamental  conceptions.  Others,  while 
using  abstract  terms  with  equal  boldness,  turn  out  when 
closely  scrutinized  to  have  really  drawn  their  notions 
from  the  concrete,  and  to  be  merely  generalizing  from 
phenomena,  more  or  less  numerous,  which  they  have 
seen  or  heard  or  read  of.  Obviously,  even  the  more 
professedly  abstract  writers  of  the  former  class  do  in 
fact  found  themselves  largely,  often  more  largely  than 
they  fancy,  upon  observation,  for  this  no  man  can  help 


THE  METHODS  OF  LEGAL  SCIENCE  611 

doing,  however  much  he  may  prefer  the  '  high  priori 
road.'  There  is,  however,  a  marked  difference  between 
the  way  in  which  this  method  is  handled  by  different 
types  of  thinkers.  Some  soar  so  high  through  the  em- 
pyrean of  metaphysics  that  it  is  hard  to  connect  their 
speculations  with  any  concrete  system  at  all.  Others 
flutter  along  so  near  the  solid  earth  of  positive  law  that 
we  can  (so  to  speak)  see  them  perching  on  the  stones, 
and  discover  the  view  they  take  of  the  questions  with 
which  the  practical  lawyer  or  legislator  has  to  deal. 

The  worth  of  the  books,  abundant  on  the  Continent 
of  Europe  but  scarce  in  England  and  the  United  States 
(though  a  little  less  scarce  in  Scotland),  which  have  been 
composed  by  writers  of  this  school,  will  be  estimated 
differently  by  those  who  enjoy  speculation  for  its  own 
sake,  and  by  those  who  think  it  a  waste  of  time  unless  it 
bears  fruit  in  truths  of  definite  practical  utility.  If  the 
latter  criterion  of  value  be  accepted,  the  importance  of 
these  treatises  cannot  be  placed  very  high.  The  foliage 
is  luxuriant,  but  the  fruit  scanty.  A  vigorous  and  inge- 
nious mind  will  doubtless,  in  whatever  way  he  may  treat 
the  subject,  stimulate  thought  in  the  student,  and  will 
probably  throw  out  just  and  suggestive  remarks  which 
may  be  treasured  up  as  practically  helpful.  As  some 
brilliant  thinkers,  at  the  head  of  whom  stand  Immanuel 
Kant  and  G.  W.  F.  Hegel,  have  adopted  this  method 
in  handling  the  Philosophy  of  Law,  and  have  given  a 
powerful  impulse  to  many  able  disciples,  it  would  be 
foolish  and  presumptuous  to  disparage  their  treatises. 
Nevertheless,  the  general  conclusion  of  English  lawyers 
has  been  that  not  much  can  be  gathered  from  lucubra- 
tions of  this  type.  They  are  decidedly  hard  reading; 
and  the  harvest  reaped  is  small  in  proportion  to  the  time 
spent.  Threading  its  way  through,  or,  as  some  would 
say,  playing  at  hide-and-seek  in,  a  forest  of  shadowy 
abstractions,  this  method  keeps  too  far  away  from  the 
field  of  concrete  law  to  throw  much  light  on  the  diffi- 
culties and  controversies  which  the  student  of  any  given 


612  THE  METHODS  OF  LEGAL  SCIENCE 

system  encounters.  Nevertheless,  while  this  is  the  gene- 
ral character  of  the  school,  there  are  some  books  refera- 
ble to  it  wherein  one  finds  legal  conceptions  analysed 
with  an  acuteness  which  cannot  but  sharpen  the  reader's 
wits,  and  others  which  pile  up  much  ingenious  and  subtle 
thinking  round  the  points  where  law  and  ethics  come 
into  contact,  some  legal  problems  being  really  ethical 
problems  also.  Even  a  student  who  has  experienced 
many  disappointments  will  not  lightly  abandon  the  hope 
that  some  lawyer  with  a  gift  for  speculation  will  one  day 
employ  this  method — in  itself  a  method  with  legitimate 
claims  to  respect — to  produce  a  book  nearer  to  the  re- 
alities of  the  subject  than  any  which  the  last  two  cen- 
turies have  seen.  There  is  more  to  be  expected  from 
such  a  man  than  from  a  metaphysician  who  thinks  he 
understands  law.  Higher  and  rarer  gifts  are  no  doubt 
needed  for  metaphysics  than  for  law;  indeed  even  high 
poetic  genius  is  not  so  rare  as  a  really  original  genius 
for  speculation.  But  the  lawyer  who  rises  into  meta- 
physics has  at  any  rate  his  body  of  practical  knowledge 
to  keep  him  in  the  path  of  sense :  the  metaphysician 
dealing  with  law  may  easily  lose  himself  in  mere  words. 

The  Analytic  Method,  standing  in  a  marked  and  some- 
times a  scornful  opposition  to  the  method  we  have  been 
considering,  leaves  metaphysics  and  ethics  on  one  side, 
and  starts  from  the  concrete,  that  is  to  say,  from  the 
actual  facts  of  law  as  it  sees  them  to-day.  It  takes  the 
terms,  whether  popular  or  technical,  which  are  in  cur- 
rent use.  It  endeavours  to  define  these  terms,  to 
classify  them,  to  explain  their  connotation,  to  shov 
their  relation  to  one  another.  It  is  of  course  frequently 
obliged,  when  it  attempts,  as  it  must  attempt,  to  be  logi- 
cal, to  modify  the  existing  terminology,  and  attach  a 
new  specific  and  technical  sense  of  its  own  to  some 
words,  or  even  to  invent  terms  altogether  new. 

This  method,  though  it  is  essentially,  in  its  more  ob- 
vious and  rudimentary  form,  so  much  a  matter  of  com- 
mon sense  as  to  have  been  more  or  less  employed  by 


METHODS   OF  LEGAL  SCIENCE  t>13 

all  who  have  thought  or  written  about  law,  and  may 
possibly  have  been  used  in  Egypt  under  the  Fourth 
Dynasty,  is  most  familiar  to  us  as  that  employed  with 
boldness  and  spirit  by  Jeremy  Bentham,  and  subse- 
quently proclaimed  by  the  school  he  founded  to  be  the 
only  helpful  mode  of  handling  the  subject.  That  school 
rendered  a  service  to  legal  study  in  England  by  the 
keen  east  wind  of  criticism  which  they  unloosed  to  play 
upon  our  law,  and  which  ended  by  uprooting  a  good 
many  old  and  probably  rotten  trees.  They  roused  an 
interest  in  the  discussion  of  general  legal  doctrines 
which  had  been  wanting  during  the  first  three  quarters 
of  last  century.  But  they  fell  into  two  grave  errors. 

They  laid  the  foundations  of  legal  science  in  the  so- 
called  Theory  o^  Utility,  which,  be  it  sound  or  unsound, 
has  nothing  to  do  with  the  Analytic  Method,  nor  with 
Positive  Law.  In  the  first  place,  it  is  a  theory  of  human 
action  which  properly  belongs  to  ethics  or  psychology; 
and  secondly,  in  so  far  as  it  can  be  deemed  to  affect  law, 
it  affects  neither  the  classification  and  exposition,  nor 
the  application  of  law  (except  in  so  far  as  it  may  sub- 
serve interpretation),  but  the  making  of  law.  That  is  to 
say,  it  belongs  not  to  the  jurist  but  to  the  legislator. 
Its  place  is  that  of  a  practical  guide  to  the  science  we 
call  the  Principles  of  Legislation.  But  in  this  applica- 
tion it  is  no  new  discovery,  for  all  legislators  have  at 
all  times  professed,  and  many  have  honestly  sought,  to 
be  guided  by  it.  Expediency,  to  use  the  older  and  less 
formal  term,  is  a  principle  obvious  in  legislation  and 
dangerous  in  law,  for  though  the  commentator  may 
properly  use  it,  the  judge  may  readily  abuse  it.  That 
Bentham,  who  was  first  and  foremost  a  reformer,  should 
incessantly  insist  on  the  doctrine  of  utility,  till  he  al- 
most crushed  his  legal  analysis  under  the  weight  of  his 
ethical  theory,  was  perhaps  natural.  He  was  really  try- 
ing to  create  a  Theory  of  Legislation.  But  John  Austin, 
the  most  prominent  of  his  professional  disciples,  was  a 
writer  on  law  rather  than  a  reformer,  so  in  him  the  fault 


614  THE  METHODS   OF  LEGAL  SCIENCE 

is  less  excusable.  Indeed,  Austin  pushed  the  habit  fur- 
ther, for  he  must  needs,  after  basing  Law  on  Utility, 
identify  Utility  with  the  Law  of  God,  in  doing  which  he 
wanders  off  into  the  field  of  Natural  Theology,  and 
virtually  repeats  the  error,  which  he  had  censured  in 
the  Roman  lawyers,  of  assuming  a  Law  of  Nature  as 
the  basis  of  legal  doctrines.  So  that  Bentham  and  he 
are  not  unjustly  described  by  the  Germans  as  the  au- 
thors of '  theories  of  Natural  Law/ 

The  second  error  of  this  school  was  that  of  relying 
too  much  upon  current  English  notions  and  terms. 
They  did  not  extend  their  view  far  enough  either  into 
the  past,  or  over  the  legal  systems  of  other  times  and 
countries.  Bentham  was,  to  be  sure,  chiefly  occupied 
with  schemes  of  reform,  and  did  not  profess  to  be  a 
jurist.  Austin  deserves  credit  for  having  gone  to  Roman 
law,  and  sought  in  it  those  general  ideas  in  which  he 
found,  or  thought  he  found,  English  law  lacking.  Un- 
fortunately he  did  not  fully  master  the  Roman  system ; 
and  his  overweening  self-confidence  betrayed  him  into 
a  dogmatic  censoriousness  which  was  unbecoming  even 
when  he  was  exposing  the  errors  of  Blackstone,  and 
was  still  less  pardonable  when  he  poured  scorn  on  the 
legal  luminaries  of  Rome.  He  did  not  perceive  how 
deep  some  of  the  difficulties  of  legal  theory  lie,  nor  that 
there  are  some  conceptions  which  it  is  safer  to  describe 
than  to  attempt  to  define.  Hence  his  solutions  are  some- 
times crude,  and  his  efforts,  in  themselves  most  lauda- 
ble, after  exactitude,  are  apt  to  fail  for  want  of  subtlety. 
On  several  fundamental  questions,  such  as  the  origin 
and  essence  of  law  and  the  nature  of  sovereignty,  Au- 
stin is  palpably  wrong,  and  the  most  eminent  of  those 
later  writers  who  started  as  his  disciples  have  been 
largely  occupied  in  disclaiming  and  correcting  his  mis- 
takes. 

The  really  great  merit  of  the  English  Analytic  School 
— a  merit  which  was  no  doubt  the  main  source  of  its 
influence,  but  which  we  are  now  in  some  danger  of 


THE   MKTIIOlts   or  LEGAL   SCIENCE  615 

forgetting — was  its  destructive  energy.  When  Bentham 
began  his  career,  case  law,  which  reigned  supreme,  was 
by  the  legal  profession  generally,  though  of  course  not 
by  such  a  man  as  Lord  Mansfield,  regarded  as  a  mere 
string  of  precedents.  No  idea  of  philosophical  arrange- 
ment, much  less  of  literary  finish,  had  begun  to  work 
upon  the  mass — 

*  Quum  neque  Musarum  scopulos  quisquam  superarat, 
Nee  dicti  stucliosus  erat.' 

Blackstone  had  indeed  rendered  the  immense  service 
of  presenting  within  moderate  compass  and  in  graceful 
diction  a  complete  view  of  the  law.  But  he  brought  an 
insufficient  grasp  of  history  and  philosophical  principle, 
and  still  less  an  exact  analysis,  to  his  exposition,  finding 
little  to  criticize  and  nothing  to  require  amendment  in 
rules  and  a  procedure  which  half  a  century  later  few 
ventured  to  justify.  This  genial  optimism,  which  was 
satisfied  with  any  explanation,  because  it  took  the  law 
as  it  stood  to  be  the  best  possible,  provoked  Bentham. 
He  writes  with  the  air  of  one  who  does  well  to  be  angry ; 
and  the  tradition  descended  to  Austin,  by  whose  time 
the  grosser  scandals  of  the  law  were  beginning  to  be 
removed. 

Between  Bentham  and  Austin  there  is  one  conspicu- 
ous difference1.  Bentham  had  not  only  a  vigorous 
but  a  fertile  and  inventive  mind,  acute  and  ingenious, 
if  sometimes  warped  or  liable  to  become  what  is  now 
called  '  cranky.'  He  drops  plenty  of  good  things  as  he 
goes  along.  Austin  is  barren.  Few  or  no  'suggestive 
thoughts  are  to  be  gathered  where  he  has  passed.  His 
dry,  persistent  iteration,  with  its  honest  struggle  after 
precision  of  terms,  has  a  certain  value  as  a  mental  dis- 
cipline, just  as  it  tests  one's  powers  of  endurance  to 
traverse  a  stony  and  waterless  desert.  An  old  Scottish 
lady  consoled  her  friend,  who  had  been  dragged  two 

1  Some  excellent  remarks  on  the  intellectual  characteristics  of  Bentham  may  be 
found  in  Mr.  Leslie  Stephen's  English  Utilitarians,  vol.  i  (1901). 


616  THE  METHODS   OF  LEGAL  SCIENCE 

miles  in  a  broken  carriage  by  runaway  horses,  with  the 
remark  that  it  must  have  been  a  precious  experience. 
But  it  is  generally  better  to  get  one's  discipline  from 
books  which  also  yield  profitable  knowledge.  Of  this 
there  is  in  Austin  nothing  which  may  not  nowadays  be 
found  better  stated  elsewhere.  Most  recent  authorities 
are  now  agreed  that  his  contributions  to  juristic  science 
are  really  so  scanty,  and  so  much  entangled  with  error, 
that  his  book  ought  no  longer  to  find  a  place  among 
those  prescribed  for  students. 

How  then,  it  may  be  asked,  did  it  happen  that  Ben- 
tham  and  even  Austin  made  a  great  impression  upon 
some  powerful  minds  in  the  last  generation  ?  Bentham 
did,  because  he  was  the  first  man  who  had  the  courage 
to  denounce  the  artificialities,  absurdities,  and  injustices 
of  the  unreformed  law  and  procedure  of  England.  No 
small  part  of  the  credit  for  the  reforms  which  Romilly, 
Brougham,  and  their  fellow  workers  carried  out  belongs 
to  the  man  who  had  begun  to  call  for  them  full  thirty 
years  before.  Austin  did,  because  in  his  time  systematic 
legal  study,  and  in  particular  legal  education,  were  almost 
extinct  in  England.  There  was  no  legal  teaching  either  in 
the  old  Universities,  or  in  London.  Though  the  grosser 
abuses  of  procedure  had  been  removed,  yet  the  subtle- 
ties of  special  pleading,  as  well  as  the  long-winded  and 
highly  artificial  intricacies  of  conveyancing,  still  flour- 
ished, and  the  law  was  regarded  as  a  forest  of  details 
through  which  it  was  useless,  even  if  possible,  to  drive 
paths  for  the  student  to  follow.  A  disciple  of  the  old  re- 
former who  brought  to  the  novel  enterprise  of  teaching 
and  systematizing  law  a  faith  in  the  reformer's  doctrines 
and  a  zeal  for  general  principles,  not  unnaturally  re- 
ceived the  sympathy  and  the  deference  of  the  eager 
youth  who  believed,  and  rightly  believed,  that  the  prac- 
tice of  the  law,  as  well  as  its  substance,  would  gain  from 
the  application  of  an  independent  and  fearless  criticism 
to  it.  By  this  service  Austin  has  earned  our  gratitude, 
and  deserves  to  be  remembered  with  respect.  So,  though 


THE  METHODS  OF  LEGAL  SCIENCE  617 

the  legal  writings  of  Bentham  and  his  disciples  have 
now  only  a  historical  interest,  we  must  not  forget  that 
they  stimulated  men  to  handle  law  in  a  new  spirit,  and 
that  those  whom  they  influenced  had  much  to  do  with 
the  establishment  of  the  modern  schools  of  law  and  the 
introduction  of  new  methods  of  preparation  for  profes- 
sional work. 

The  third  method  is  the  Historical.  Instead  of  taking 
law  as  a  datum,  like  the  two  other  previous  methods, 
it  seeks  to  find  how  law  sprang  up  and  grew  to  be 
what  it  is.  It  sees  in  law  a  product  of  time,  the  germ 
of  which,  like  the  germ  of  the  State,  exists  in  the  nature 
of  man  as  a  being  made  for  society,  and  which  develops 
from  this  germ  in  various  forms  according  to  the  en- 
vironing influences  which  play  upon  it.  Although  law 
may  not  have  been  created  by  the  State,  it  tends  as  it 
grows  to  become  more  and  more  closely  associated  with 
the  State  as  a  function  of  the  latter's  energy.  Though 
its  leading  doctrines  and  its  fundamental  institutions 
are  in  some  respects  essentially  the  same  in  all  civilized 
communities,  still  every  given  system  is,  in  the  histo- 
rian's view,  for  ever  changing,  growing,  and  decay- 
ing, both  in  its  theory  and  in  its  substance,  i.e.  both 
in  the  ideas  which  create  and  underlie  the  legal  con- 
ceptions and  rules,  and  in  the  particular  forms  which 
those  rules  have  assumed  no  less  than  in  the  institutions 
by  which  such  rules  are  put  in  force. 

The  utilities  of  the  Historical  Method  as  applied  to 
any  given  system  of  law  are  two. 

It  explains  many  conceptions,  doctrines,  and  rules 
which  no  abstract  theory  or  logical  analysis  can  explain, 
because  they  issue,  not  from  general  human  reason  and 
the  nature  of  things,  but  from  special  conditions  in  the 
country  or  people  where  the  law  in  question  arose.  All 
law  is  a  compromise  between  the  past  and  the  present, 
between  tradition  and  convenience.  Hence  pure  analy- 
sis, since  it  deals  with  the  present  only,  can  never  fully 
explain  any  legal  system. 


618  TEE  METHODS   OF  LEGAL  SCIENCE 

This  is  not  to  say  that  the  Historical  method  is  a 
mere  record  of  accidents.  On  the  contrary  it  endeavours 
to  eliminate,  or  at  least  to  reduce  to  due  proportions, 
that  element  of  accident  which  results  from  the  personal 
fancies  and  arbitrary  volition  of  individual  lawgivers.  It 
conceives  of  national  character  and  the  circumstances 
of  national  growth  as  creative  forces,  whereof  law  is 
the  efflux  and  expression,  being  itself  a  living  organism, 
which  in  its  turn  helps  to  shape  the  mind  of  the  people. 
Accordingly  it  shows  that  each  nation,  rather  than  in- 
dividual men,  however  potent,  is,  through  what  the  Ger- 
mans call  its  Legal  Consciousness  (Rcchtsbcwusstscin) 
the  maker  and  moulder  of  its  law. 

A  second  merit  of  this  method  is  that  of  indicating 
that  the  conceptions  and  rules  which  prevail  at  any 
given  time,  however  obviously  reasonable  and  useful 
they  may  appear  to  the  generation  now  living,  will  not 
always  appear  so,  but  must  undergo  the  same  change 
and  decay  which  previous  rules  have  experienced.  It 
teaches  us  never  to  condemn  the  past  because  it  is  not 
the  present,  nor  ever  to  forget  when  we  praise  the  pre- 
sent that  it  too  will  some  day  be  the  past.  This  is  one 
of  those  truisms  which  men  are  always  forgetting  to 
apply,  and  of  which  legislators  in  particular  need  to  be 
often  reminded. 

The  risk  principally  incidental  to  the  Historical 
method  is,  that  it  is  apt  to  lapse,  either  into  mere  anti- 
quarianism  on  the  one  side,  or  into  general  political  and 
social  history  on  the  other.  Some  charge  it  with  retard- 
ing improvement  by  justifying  the  past.  Those  who 
oppose  reforms  have  often  so  abused  it :  just  as  those 
abuse  it  who  when  they  palliate  crimes  by  dwelling  on 
the  '  so-called  conditions  of  the  age  '  attenuate  all  moral 
distinctions.  '  In  judging  Phalaris,'  a  modern  lecturer 
is  reported  to  have  said,  '  we  must  not  forget  that  the 
moral  standard  of  Phalaris'  time  is  not  that  of  our  own.' 
Nevertheless  History,  when  she  explains  and  is  sup- 
posed to  justify  the  past,  justifies  it  as  the  past,  and  must 


THE  METHODS  or  Li:<;\L  8GIBNGM  619 

not  be  deemed  to  defend  it  for  the  purposes  of  the 
present. 

It  is,  however,  a  weak  point  in  the  Historical  method 
as  applied  to  the  science  or  philosophy  of  law  that  it  is 
more  applicable  to  the  law  of  any  particular  country 
than  to  the  theory  of  law  in  general,  for  the  details  of 
legal  history  vary  so  much  in  different  countries  that 
immense  knowledge  and  unusual  architectonic  power 
are  needed  to  combine  their  general  results  for  the  pur- 
poses of  a  comprehensive  theory.  Indeed,  I  doubt  if 
any  man  of  the  requisite  capacity  (unless  perhaps  Rudolf 
von  Ihering)  has  yet  produced  a  treatise  on  jurispru- 
dence or  the  philosophy  of  law  by  means  of  this  me- 
thod. The  thing,  however,  may  be  done,  and  so  will 
doubtless  be  done  some  day.  Everything  happens  at 
last. 

Lastly,  there  is  the  so-called  Comparative  Method, 
which  is  the  youngest  of  the  four.  It  is  concerned  with 
space  as  the  Historical  method  is  with  time.  It  col- 
lects, examines,  collates,  the  notions,  doctrines,  rules, 
and  institutions  which  are  found  in  every  developed 
legal  system,  or  at  least  in  most  systems,  notes  the 
points  in  which  they  agree  or  differ,  and  seeks  thereby 
to  construct  a  system  which  shall  be  Natural  because 
it  embodies  what  men  otherwise  unlike  have  agreed  in 
feeling  to  be  essential,  Philosophical  because  it  gets 
below  words  and  names  and  discovers  identity  of  sub- 
stance under  diversity  of  description,  and  Serviceable, 
because  it  shows  by  what  particular  means  the  ends 
which  all  (or  most)  systems  pursue  have  been  best  at- 
tained. The  process  is  something  like  that  which  a 
Roman  Praetor  might  have  followed  in  constructing 
the  general  or  theoretical  part  of  his  ins  gentium1.  If 
indeed  we  are  to  suppose  the  Praetor  ever  really  did 
study  the  laws  of  the  various  neighbours  of  Rome,  he 
was  one  of  the  founders  of  this  method,  though  to  be 
sure  the  Roman  commissioners,  who  are  said  to  have 

i  See  Essay  XI,  p.  571  sqq. 


620  THE  METHODS  OF  LEGAL  SCIENCE 

been  sent  out  to  examine  the  laws  of  other  countries  be- 
fore the  Decemviral  legislation,  preceded  him  in  this 
attempt. 

The  comparative  science  of  jurisprudence  appears, 
however,  in  two  forms.  One  of  these  must,  like  the 
science  of  comparative  grammar,  crave  the  aid  of  his- 
tory, for  the  study  of  the  differences  between  two  sys- 
tems becomes  much  more  profitable  when  it  is  seen  how 
the  differences  arose,  and  this  can  be  explained  only  by 
social  and  political  history.  This  form  may  be  deemed 
an  extension  of  the  historical  method,  which  it  resem- 
bles in  helping  us  to  disengage  what  is  local  or  accidental 
or  transient  in  legal  doctrine  from  what  is  general,  es- 
sential, and  permanent,  and  in  thereby  affording  some 
security  against  a  narrow  or  superficial  view.  It  is  really 
an  historical  study  of  law  in  general;  and,  like  history, 
it  is  not  directed  to  practical  ends. 

The  other  form,  though  it  cannot  dispense  with  the 
aid  of  history,  because  the  differences  between  the  laws 
of  different  countries  are  not  explicable  without  a  know- 
ledge of  their  sources  in  the  past,  has  a  narrower  range 
in  time,  being  directed  to  contemporary  phenomena.  It 
has  moreover  a  palpably  practical  aim.  It  sets  out  by 
ascertaining  and  examining  the  rules  actually  in  force 
in  modern  civilized  countries,  and  proceeds  to  show  by 
what  means  these  rules  deal  with  problems  substantially 
the  same  in  those  countries.  For  example,  it  takes  such 
a  topic  as  the  liability  of  an  employer  for  the  acts  of 
his  servant,  or  the  structure  and  management  of  in- 
corporated companies,  compares  the  enactments  it  finds 
in  France,  in  Germany,  in  the  British  Colonies  and  in 
the  States  of  the  American  Union,  points  out  their  dif- 
ferences, and  seeks  to  determine  which  mode  of  handling 
the  difficulties  of  the  subject  is  the  simplest  and  most 
likely  to  work  well  in  practice.  The  next  step  would  be 
to  test  each  legislative  experiment  by  the  results  it  has 
secured  in  each  country.  Here,  however,  the  task  be- 
comes more  difficult,  and  requires  qualities  in  the  in- 


THE  METHODS  OF  LEGAL  SCIENCE  621 

vestigator  which  are  not  altogether  those  needed  by  the 
jurist. 

What  the  Comparative  method  does  for  legal  training 
and  legal  theory  it  does  in  its  first  mentioned  and  his- 
torical form.  Ample  as  the  materials  may  appear,  they 
are  really  somewhat  scanty,  because  there  have  been  in 
the  world  not  many  distinct  types  of  legal  system  or  doc- 
trine, and  few  of  these  have  reached  a  high  development. 
Of  the  ancient  and  long  since  departed  systems  little 
is  left,  and  that  little  not  very  helpful  for  this  particular 
purpose.  There  are  some  fragments  of  old  Celtic  law 
from  Ireland,  with  larger  fragments  of  old  Teutonic 
law  chiefly  from  Iceland,  Norway,  Friesland,  and  the 
Carolingian  Empire,  some  old  Slavonic  land  and  family 
customs,  besides  what  may  be  gleaned  from  the  ancient 
books  of  India,  and  what  has  recently  been  discovered 
in  Egypt,  in  the  clay  tablets  of  Babylon,  and  in  inscrip- 
tions among  the  ruins  of  Greek  cities.  Of  the  modern 
systems,  on  the  other  hand,  there  are  besides  those  of 
Teutonic  origin,  practically  only  three  worth  mention- 
ing: Hindu  law,  which  has  been  fully  developed  only  in 
two  or  three  directions ;  Muhamadan  law,  which  is  de- 
ficient on  some  of  the  sides  we  should  deem  the  most 
important;  and  the  Roman  law,  which  now  covers  all 
those  parts  of  the  civilized  world  that  are  not  covered 
by  English  law,  including  the  continent  of  Europe  and 
the  colonies  of  European  nations  (some  British  colonies 
as  well  as  French,  Dutch,  German,  and  Portuguese) 
except  those  which  lie  in  the  temperate  parts  of  North 
America  and  in  Australasia.  So  far,  therefore,  as  the 
doctrines  of  law  in  its  civilized  and  developed  forms, 
suited  to  a  progressive  modern  nation,  are  concerned, 
the  comparative  method  is  virtually  restricted  to  a  com- 
parison of  English  and  Roman  conceptions  and  rules. 
And  the  fundamental  ideas  and  principles  of  English  law 
itself  have  been  in  some  departments  so  much  affected 
by  Roman  law  that  they  can  hardly  be  treated  as  inde- 
pendent material  for  comparative  study. 


622  THE  METHODS  OF  LEGAL  SCIENCE 

It  is  when  we  leave  the  field  of  legal  philosophy  and 
jurisprudence  in  general  for  the  field  of  particulars 
and  details  that  the  practical  value  of  the  Comparative 
method  begins.  An  examination  of  the  various  ways 
in  which  economic  and  social  problems  have  been  dealt 
with  in  recent  times,  and  in  which  commerce  has  been 
regulated  and  crime  checked,  is  in  the  highest  degree 
interesting  and  useful.  But  that  is  not  quite  the  kind 
of  legal  study  which  we  are  here  primarily  engaged  in 
considering.  No  doubt  the  way  in  which  questions  of 
liability  and  responsibility  and  negligence,  to  take  a 
familiar  example,  are  dealt  with  in  the  laws  of  different 
countries,  does  throw  light  upon  general  juristic  con- 
ceptions and  upon  the  lines  which  Courts  ought  to  follow 
in  developing  these  difficult  branches  of  any  concrete 
system.  But  on  the  whole,  it  is  rather  to  the  province  of 
legislation  than  to  that  of  law  that  this  part  of  compara- 
tive jurisprudence  belongs ;  and,  as  has  been  already  ob- 
served, the  utility  for  practical  guidance  of  the  results 
which  an  examination  of  the  legislation  of  various  civi- 
lized states  supplies  is  somewhat  reduced  by  the  difficulty 
of  determining  how  much  of  those  results,  be  they  good 
or  evil,  is  in  each  case  attributable  to  legal  enactments, 
how  much  to  the  social  and  economic  environment  in 
which  the  enactments  work. 

If  we  are  to  attempt  to  estimate  the  respective  worth 
of  these  four  methods  for  the  creation  of  a  theory  or 
philosophy  or  science  of  law,  we  must  begin  by  settling 
for  whom  such  a  science  is  designed  and  to  whom  it 
will  be  useful. 

Three  kinds  of  persons  will  primarily  and  directly 
profit  by  having  such  a  science  built  up  on  the  best  lines, 
viz.  the  teachers  and  students  of  law,  the  practitioners 
of  law,  including  both  advocates  and  judges,  and  the 
makers  of  law,  i.e.  legislators  and  draftsmen.  Legis- 
lators, however,  whether  monarchs  or  members  of  legis- 
lative assemblies,  have  in  modern  countries  seldom 
sought  to  acquire  any  specifically  legal  knowledge, 


THE  METHODS  OF  LEGAL  SCIENCE  623 

though  some  persons  who  sit  in  the  legislatures  of 
modern  countries  usually  happen  to  possess  it.  Thus  it 
is  rather  of  the  two  other  classes  we  must  think,  that  is 
to  say,  of  the  value  of  a  scientific  theory  for  facilitating 
the  acquisition  of  legal  knowledge  by  the  learner,  and  of 
its  value  in  helping  the  practitioner  (whether  advocate 
or  judge)  to  apply  it  with  accuracy,  perspicacity,  inge- 
nuity, and  promptitude.  In  proposing  this  test  I  do  not 
mean  to  ignore  the  importance  which  belongs  to  the 
philosophy  of  every  great  branch  of  learning,  as  an  end 
in  itself,  apart  from  all  practical  benefits  to  be  derived 
from  it.  That  importance  is,  however,  as  the  Romans 
say  of  freedom,  res  inacstimabilis,  a  thing  too  precious  to 
receive  a  valuation  in  any  recognized  currency.  Practi- 
cal utility,  on  the  other  hand,  can  be  tested  and  valued, 
so  it  is  to  the  practical  utility  of  this  science  in  making 
men  thorough  masters  of  law  that  we  had  better  confine 
our  view. 

All  the  four  methods  are  legitimate  and  capable  of 
being  applied  in  a  truly  scientific  spirit.  None  therefore 
is  to  be  either  neglected  or  disparaged.  If,  however, 
we  judge  them  by  their  fruits,  we  shall  find  that  the  His- 
torical has  given  the  best  crop.  The  Metaphysical  tends 
to  be  not  merely  abstract  but  vague  and  viewy.  Of  the 
treatises  in  which  it  has  been  employed  the  best  are 
indeed  not  to  be  deemed  empty.  Scattered  through  not 
a  few  of  them  one  finds  acute  and  suggestive  remarks. 
They  subserve  a  sound  analysis  by  their  treatment  of 
ethical  problems :  and  sometimes  they  present  what  are 
really  considerations  of  practical  expediency  disguised 
in  the  robes  of  sacerdotal  transcendentalism.  The  diffi- 
culty which  forbids  many  among  us  to  give  more  study 
to  these  books  is  the  shortness  of  life.  Much  talent, 
sometimes  of  a  high  order,  has  gone  to  the  making  of 
them.  But  they  are,  and  not  solely  the  German  ones, 
terribly  hard  reading. 

The  Analytic  method  keeps  much  nearer  to  the  reali- 
ties of  law,  and  is  serviceable  for  the  clarifying  of  our 


624  THE  METHODS  OF  LEGAL  SCIENCE 

ideas.  Its  English  votaries  have,  however,  generally 
wanted  breadth  of  view,  and  have  tried  to  force  defini- 
tions on  facts,  instead  of  letting  the  facts  prescribe  the 
definition.  They  have  been  unequal  to  the  subtlety  of 
nature  (for  law  also  is  a  product  of  nature),  and  this 
largely  because  they  have  neglected  the  materials  for 
induction  which  history  supplies. 

The  Comparative  method  (as  already  observed)  suf- 
fers from  a  lack  of  material  for  the  purposes  of  a  philo- 
sophy of  law  in  general,  and  becomes  in  practice  an 
examination  of  Roman  conceptions  with  the  help  of  light 
from  England  in  those  departments  of  English  law  which 
have  been  least  influenced  by  Rome1,  and  of  some 
glimmers  from  the  East  and  from  the  laws  of  ancient 
European  peoples. 

The  Historical  method,  on  the  other  hand,  may  at 
least  be  relied  upon  to  give  us  facts.  Facts  are  always 
helpful,  when  men  have  been  trained  to  use  them.  It 
is  the  business  of  historical  criticism  to  impart  this 
training,  just  as  it  is  the  business  of  logic  to  teach  men 
how  to  analyse  a  current  conception  and  to  distinguish 
the  various  senses  in  which  a  term  may  be  used. 

If  the  question  is  propounded — How  should  these 
four  methods,  or  some  or  one  of  them,  be  used  for  the 
purpose  of  legal  instruction  and  the  formation  of  a  legal 
mind  and  power  of  handling  legal  problems,  may  we  not 
answer  it  in  some  such  way  as  the  following? 

The  philosophy  or  theory  of  Law  should  begin  by 
determining  the  place  of  law  among  the  human  or  moral 
as  opposed  to  the  physical  sciences,  and  should  examine 
its  relations  to  Psychology,  Ethics,  Politics,  and  Eco- 
nomics. As  this  inquiry  will  start  from  a  general  survey 
of  the  nature  of  man  and  the  general  ideas  he  forms,  it 
will  fall  within  the  scope  of  what  we  have  called  the 
Metaphysical  method. 

»  An  example  of  how  stimulating  this  may  be  made  is  furnished  by  the  treatment 
of  Possession  in  the  acute  and  learned  lectures  on  the  Common  Law  of  Mr.  O.  W. 
Holmes  (now  Chief  Justice  of  Massachusetts). 


THE  METHODS   OF  LEGAL  SCI  EM  i:  625 

The  notions  and  conceptions  which  are  essential  to 
law  and  lie  at  the  bottom  of  all  systems  will  then  be 
investigated,  and  particularly  the  following  fundamental 
conceptions — Right,  Obligation,  Duty,  Liability,  Law, 
Custom.  Some  will  prefer  to  deduce  these  conceptions 
by  the  metaphysical  method  from  the  phenomena  of 
human  nature  and  the  principles  that  connect  these 
phenomena.  Some  will  prefer  to  start  from  current 
notions  as  embodied  in  current  language,  and  to  reach 
correct  definitions  by  analysing  the  meaning  conveyed 
by  each  term  and  setting  out  the  facts  it  is  intended  to 
cover.  Whichever  method  be  adopted — and  there  is  less 
real  difference  between  the  two  than  the  description 
here  given  of  them  might  seem  to  convey — the  Histori- 
cal method  ought  to  accompany  and  aid  the  application 
of  either.  For  although  the  object  of  the  inquiry  is  to 
obtain  a  statement  which  shall  be  adequate  and  exact 
for  the  science  of  law  as  a  fully  developed  product  of 
civilized  societies,  we  always  need  to  be  warned  by  His- 
tory against  assuming  that  our  present  notions  are  suf- 
ficiently wide,  and  sufficiently  possessed  of  the  elements 
of  necessity  and  permanence  to  secure  that  our  proposi- 
tions shall  be  generally  true  and  enable  our  definitions  to 
hit  what  is  really  essential.  The  once  popular  defini- 
tion of  law  as  a  Command  of  the  State  is  an  instance  of 
the  danger  of  forgetting  the  past,  for  the  fact  that  it 
would  have  been  palpably  untrue  in  certain  stages  of 
political  development  shows  that  it  does  not  rest  upon 
a  sufficiently  broad  foundation. 

From  these  general  conceptions  the  inquiry  will 
advance  to  a  second  order  of  ideas  and  categories, 
more  specifically  and  purely  legal,  such  as  Ownership, 
Possession,  Contract,  Tort,  Marriage,  Guardianship, 
Slavery,  Conveyance,  Pledge,  Lien,  Prescription,  In- 
heritance, Sale,  Partnership,  Bailment,  Crime,  Fraud, 
Negligence.  Here  we  come  still  closer  to  the  rules  of 
concrete  systems.  A  German  metaphysician  may  no 
doubt  deduce  the  abstract  idea  of  Ownership  or  Con- 
40 


636  THE  METHODS  OF  LEGAL  SCIENCE 

tract  from  the  general  principles  he  has  previously  laid 
down  in  his  speculative  treatment  of  the  subject.  A  So- 
cratic  analyst  may  by  testing  current  terms  and  phrases, 
and  unfolding  the  meanings  involved  in  these  terms, 
arrive  at  definitions  of  them.  But  the  examination  of 
the  conceptions  and  the  definition  of  the  terms  must  be 
mainly  based  on  a  study  of  the  facts  which  in  one  or 
more  actual  legal  systems  these  conceptions  cover.  In 
this  study  the  Historical  method  can  render  effective 
help,  because  the  rules  actually  regulating  in  any  given 
system  all  the  relations  denoted  by  these  terms  are 
sure  to  have  something  irregular  or  apparently  arbitrary 
about  them,  something  which  pure  reason  would  not 
have  suggested.  The  forms,  for  instance,  which  Pos- 
session, Inheritance,  and  Pledge  have  taken  both  in 
Roman  and  in  English  law  have  many  peculiarities  ex- 
plicable only  by  tracing  the  causes  that  produced  them. 
The  definition  which  the  jurist  will  propound  for  the 
purposes  of  his  science  of  law  in  general  will  avoid  such 
peculiarities,  but  he  cannot  afford  to  be  ignorant  of  them 
or  of  their  origin,  else  he  may  miss  some  side  of  their 
significance. 

Although  in  theoretical  Jurisprudence  the  part  of  His- 
tory is  on  the  whole  secondary,  it  is  nevertheless  indis- 
pensable. For  History  shows  us  cases  where  things 
that  are  really  different  go  by  the  same  name,  and  other 
cases  where  things  that  are  really  the  same  go  by  dif- 
ferent names,  cases  where  a  rule  has  been  extended  be- 
yond, and  others  where  it  has  not  been  extended  to,  its 
proper  or  natural  range,  and  thus  it  guides  the  jurist, 
explaining  the  facts  on  which  he  has  to  found  his  theory. 
The  Comparative  method  renders  a  similar  service  in 
preventing  him  from  laying  too  much  stress  on  the  spe- 
cial shape  in  which  a  doctrine  or  institution  appears  in 
the  particular  system  whose  history  he  is  studying,  and 
generally  in  pointing  out  identity  of  substance  or  effect 
coupled  with  diversity  of  form  or  expression. 

All  the  above-named  categories   or  conceptions   or 


THE  METHODS  OF  LEGAL  SCIENCE  627 

institutions,  together  with  some  few  others  of  minor  im- 
portance, belong  to  the  science  of  law  in  general,  because 
they  appear  in  every  fully  developed  system.  When, 
however,  we  get  more  into  particulars,  it  becomes  in- 
creasingly difficult  to  lay  down  general  doctrines  or 
suggest  general  rules  applicable  to  all  communities,  be- 
cause details  must  be  settled  with  reference  to  the  needs 
and  usages  of  a  given  community,  and  that  which  suits 
one  would  hardly  suit  another.  Here  therefore  the 
Philosophy  or  Science  of  Jurisprudence  will  bid  fare- 
well to  the  student,  handing  him  over  to  those  who 
teach  the  law  of  England  or  Scotland  or  France  or 
Russia,  as  the  case  may  be,  and  bidding  him  remember 
to  apply  the  general  principles  he  has  mastered  to  the 
criticism  of  the  details  which  he  will  thenceforth  be  oc- 
cupied in  learning. 

The  principles  which  constitute  the  Science  or  Theory 
of  Law  in  general  can  be  adequately  stated  within  mode- 
rate compass.  The  subject  is  not  a  large  one,  unless  a 
writer  spreads  himself  out  in  ethics  on  the  one  hand  or 
accumulates  historical  details  on  the  other.  Nor  is  it 
in  the  knowledge  to  be  given  that  the  value  of  the  study 
will  chiefly  lie ;  it  is  rather  in  the  training  to  use  the  right 
methods  in  the  right  way.  Before  he  is  plunged  into 
details,  the  student  ought  to  acquire  the  habit  of  looking 
for  principles,  of  analysing  terms,  of  perceiving  that  legal 
doctrines  have  all  had  their  growth  from  rude  begin- 
nings and  will  change  further.  These  aptitudes  will 
serve  him  when  he  enters  the  domain  of  technical  law, 
which  is  a  domain  less  of  Reason  than  of  Authority. 
And  authority,  though  it  may  be  called  the  reason  of 
the  past,  rules  not  because  it  is  reason  but  because  it 
has  the  sanction  of  a  past  pronouncement. 

Arguments  founded  on  the  reason  of  things  or  on 
the  tendency  of  historical  development  will  avail  nothing 
in  practice  against  a  positive  rule,  whether  contained  in 
a  statute  or  deducible  from  a  decided  case.  Seldom  in- 
deed will  a  judicious  advocate  invoke  either  Reason  or 


628  THE  METHODS  OF  LEGAL  SCIENCE 

History,  unless  perhaps  in  arguing  before  the  House 
of  Lords  a  point  whereon  little  authority  exists.  But 
in  reasoning  from  decided  cases,  and  even  in  interpret- 
ing statutes,  his  mastery  of  the  methods  already  de- 
scribed will  stand  him  in  good  stead.  Nor  is  it  to  be 
forgotten  that  the  judge  and  the  writer  of  text-books 
have,  each  of  them,  important  functions  in  guiding  the 
development  of  the  law.  When  a  question  is  to  be  dealt 
with  regarding  which  authority  is  scanty  or  the  decisions 
are  conflicting,  a  jurist  belonging  to  either  of  these 
classes  may  apply  the  philosophic  habit  of  mind  formed 
by  his  theoretic  studies  to  the  task  of  finding  a  solution 
which  shall  be  sound  and  durable,  because  conformable 
to  principle,  and  standing  in  the  true  line  of  historical 
development. 

Let  us  return,  now  that  we  have  sketched  a  scheme 
for  a  Theory  or  Science  of  Law  in  general,  to  the  ques- 
tion whence  we  started,  whether  the  Romans,  who  never 
produced  any  such  theory  or  science,  suffered  from  the 
want  of  it.  If  they  did  suffer,  why  do  we  praise  their  treat- 
ment of  law,  and  why  in  particular  do  we  call  it  a  philoso- 
phical treatment  ?  If  they  did  not  suffer,  what  becomes  of 
the  importance  of  a  Science  or  Theory  to  the  modern 
lawyer?  Why  should  he  trouble  himself  about  it  at  all? 

What  is  it  which  we  admire  in  the  Roman  jurists,  and 
in  the  Roman  law  generally? 

The  characteristic  merits  of  the  Roman  law — and  I 
speak  of  course  only  of  the  Private  Law,  for  Public  or 
Constitutional  Law  must  be  considered  apart — are  its 
Reasonableness  and  its  Consistency.  It  is  pervaded  by 
a  spirit  of  good  sense.  Except  in  two  departments, 
those  of  the  Paternal  Power  and  of  Slavery,  its  rules 
almost  always  conform  to  considerations  of  justice  and 
expediency.  Very  little  needs  to  be  excused  as  the  re- 
sult of  historical  causes.  Even  Slavery  and  the  P atria 
Potestas,  the  former  universal  in  the  ancient  world,  the 
latter  so  deep-rooted  among  the  Romans  that  it  could 
never  be  altogether  expunged,  are  in  the  later  centuries 


THE  METHODS  OF  LEGAL  SCIEMB  629 

so  steadily  and  carefully  mitigated  that  most  of  their 
old  harshness  disappears.  The  moral  tone  of  the  law  is, 
take  it  all  in  all,  as  high  as  that  of  any  modern  system ; 
and  in  some  few  points  higher  than  our  own.  By  its 
Consistency  I  mean  the  harmony  and  symmetry  of  its 
parts,  the  maintenance  through  a  multiplicity  of  details 
of  the  leading  principles,  the  flexibility  with  which  these 
principles  are  adapted  to  the  varying  needs  of  time, 
place,  and  circumstance.  So  the  excellence  of  the  jurists 
resides  in  their  clear  practical  sense,  in  the  air  of  enlight- 
enment and  of  what  may  be  called  intellectual  urbanity 
which  pervades  them.  Most  of  them  express  themselves 
with  a  concise  neatness  and  finish  which  gives  us  the 
pith  of  their  view  in  the  fewest  and  simplest  words. 
They  dislike  what  is  arbitrary  or  artificial,  taking  for 
their  aim  what  they  call  elegance  (clcgantia  iuris),  the 
plastic  skill  (so  to  speak)  in  developing  a  principle  which 
gives  to  law  the  character  of  Art,  preserving  harmony, 
avoiding  exceptions  and  irregularities.  Yet  they  never 
sacrifice  practical  convenience  to  their  theories,  nor  does 
their  deference  to  authority  prevent  them  from  con- 
stantly striving  to  correct  the  defects  of  the  law  as  it 
came  down  from  their  predecessors. 

In  these  respects  the  Roman  law  and  the  Roman 
lawyers  of  the  classical  age  (the  first  two  and  a  half 
centuries  of  the  Empire)  may  be  deemed  more  philo- 
sophical than  our  own  law  or  its  luminaries.  Our  law, 
equal  to  the  Roman  in  its  sense  of  justice  and  in  its 
subtlety,  and  in  some  respects  distinctly  superior  to  the 
Roman,  is  also  a  far  larger  and  more  complex  structure, 
as  it  has  to  regulate  a  far  more  complex  society.  But 
it  has  less  symmetry  and  consistency,  more  intricacy 
and  artificiality,  than  the  Roman:  and  few  of  our  legal 
writers  can  be  placed  on  a  level  with  the  greatest  of 
the  classical  jurists.  Compare  Lord  Coke  for  instance, 
or  Lord  St.  Leonards,  with  Papinian  or  Gaius.  Lord 
St.  Leonards  was  a  man  greatly  admired  by  the  pro- 
fession, and  his  books  secured  an  authority  unsurpassed, 


630  THE  METHODS  OF  LEGAL  SCIENCE 

if  indeed  equalled,  by  any  other  legal  writings  of  the 
century1.  His  knowledge  was  immense,  and  it  was 
minute.  His  treatises  show  the  same  acuteness  and  in- 
genuity in  arguing  from  cases  which  his  forensic  career 
displayed.  But  these  treatises  are  a  mere  accumulation 
of  details,  unillumined  and  unrelieved  by  any  statement 
of  general  principles.  In  literary  style,  and  no  less  in  the 
cast  and  quality  of  his  intellect,  he  is  harsh  and  crabbed, 
but  his  frequent  obscurity  must  be  due  less  to  a  want 
of  clear  thinking  than  to  the  fact  that  our  legal  text- 
books have  so  rarely  aimed  at  excellence  of  literary 
form  that  this  famous  case-lawyer  had  no  ideal  of  lucidity 
or  finish  before  him.  Lord  St.  Leonards  is  not  an  ex- 
ceptional instance.  That  sound  and  very  learned  legal 
author  whom  the  early  Victorian  era  so  much  valued, 
Mr.  John  William  Smith  (Smith's  Leading  Cases  and 
Contracts),  illustrates  the  same  tendencies. 

Now  the  merits  we  have  noted  in  the  Roman  law  and 
the  Roman  jurists  are  largely  merits  of  method.  To  set 
forth  the  causes  to  which  the  excellence  of  the  Roman 
law  is  ascribable  would  involve  a  long  digression,  and  I 
have  dealt  with  those  causes  elsewhere.  So  let  us  con- 
fine ourselves  to  the  jurists.  They  reason  and  they 
write  as  men  who  have  been  thoroughly  trained,  who 
have  been  imbued  with  a  large  and  liberal  view  of  law, 
who  have  philosophy  and  analysis  and  the  sense  of  his- 
torical development  equally  at  their  command.  They 
are  endowed  in  fact  with  the  qualities  which,  as  we  have 
been  led  to  think,  a  course  of  the  Theory  or  Science  of 
Law  ought  to  impart.  How  then  did  they  acquire  these 
qualities  ? 

1  Lord  Mansfield  in  the  eighteenth  century  or  Lord  Cairns  in  the  nineteenth, 
perhaps  the  two  most  philosophical  minds  that  have  adorned  the  English  bench, 
would  doubtless,  if  they  had  written  on  law,  have  shone  as  legal  writers  far  more 
than  Lord  St.  Leonards ;  and  it  is  of  course  true  that  in  order  to  have  a  fair  com- 
parison our  great  judges  ought  to  be  thrown  into  the  English  scale.  But  the  form 
in  which  their  wisdom  appears  makes  it  less  available  than  the  form  in  which  we 
have  that  of  the  Romans.  So  too  Lord  Justice  Mellish,  the  most  solid  and  cogent 
reasoner  of  his  time,  and  Lord  Bowen,  the  most  subtle  and  ingenious,  would  doubt- 
less have  produced  admirable  work  had  not  their  time  been  absorbed  by  their  fo- 
rensic and  judicial  duties 


THE  METHODS  OF  LEGAL  SCIEM'i:  681 

First,  by  the  study  of  philosophy.  Though  our  data 
scarcely  justify  a  general  statement,  it  seems  probable 
that  many  of  the  jurists,  especially  of  such  as  grew  up  at 
Rome,  received  instruction  in  Greek  philosophy.  It  has 
been  suggested  that  not  a  few  professed  the  doctrines  of 
the  Porch.  Anyhow  the  conception  of  Nature  as  a  force 
or  body  of  tendencies  prompting  and  guiding  the  pro- 
gress of  law  was  familiar  to  them,  and  appears  to  have 
influenced  their  ideas.  Then  by  a  searching  and  sifting 
of  legal  terms  and  maxims,  what  may  be  called  an  exe- 
tastic  method,  they  sharpened  the  edge  of  their  minds 
and  gave  clearness  to  their  notions.  Both  the  philo- 
sophical and  the  rhetorical  training  given  to  young  men 
fostered  the  habit  of  analysis  ;  and  the  disputations  which 
went  on  among  the  lawyers,  stimulated  by  the  contro- 
versies of  the  two  great  schools,  Sabinians  and  Procu- 
lians,  doubtless  trained  men  in  dialectic,  wherein  the 
framing  and  the  dissecting  of  definitions  play  no  small 
part.  The  history  of  law  does  not  seem  to  have  been 
taught,  and  regarding  some  parts  of  their  earlier  legal 
history  the  Romans  of  the  later  Empire  may  have 
known  less  than  we  know  to-day.  The  sketch  taken 
from  Pomponius  which  we  have  in  the  beginning  of  Jus- 
tinian's Digest  is  uncritical,  and  in  many  points  defective. 
But  these  jurists,  from  their  study  of  the  development 
of  equitable  principles  through  the  action  of  the  Praetor, 
had  a  training  in  historical  method  which  must  have  been 
eminently  profitable.  During  the  last  two  centuries  of 
the  Republic  and  the  first  century  of  the  Empire,  the 
law  of  Rome  was  being  constantly  amended  and  de- 
veloped far  less  by  the  comparatively  rough  method  of 
legislation  than  by  the  delicate  methods  of  interpreta- 
tion, discussion,  and  the  issuing  of  praetorian  Edicts, 
and  developed  in  such  wise  that  the  new  had  always  ar- 
rived before  the  old  departed,  so  that  the  process  of 
evolution  was  always  before  their  eyes,  and  its  lessons 
familiar  to  them. 

Finally,  the  administration  of  justice  by  the  Proctor 


632  THE  METHODS   OF  LEGAL  SCIENCE 

peregrinus,  who  doubtless  based  himself  mainly  upon 
the  commercial  usages  of  the  merchants  who  from  vari- 
ous quarters  resorted  to  Rome,  and  still  more  the  issu- 
ing of  provincial  edicts  by  the  magistrates  who  were 
sent  to  rule  the  provinces  according  to  systems  which 
combined  some  Roman  rules  and  principles  with  other 
rules  which  belonged  to  the  particular  province,  sup- 
plied abundant  materials  for  observing  in  what  points 
the  special  and  peculiar  law  of  Rome  agreed  with  or 
differed  from  the  laws  of  other  peoples  and  states1. 
The  jurists  were  thus  led,  not  by  theory,  but  by  the 
practical  needs  of  the  case,  to  apply  and  to  profit  by  the 
Comparative  method,  no  less  than  by  the  three  other 
methods  above  enumerated.  And  accordingly  they  did 
in  fact  obtain,  without  any  paraphernalia  of  a  Philo- 
sophy or  Science  embodied  in  separate  treatises  or  os- 
tentatiously taught  as  a  separate  subject,  those  very 
gifts  and  aptitudes  which  a  systematic  and  enlightened 
scheme  of  legal  education  ought  to  confer.  They  did 
not  set  out  with  abstractions,  like  our  German  and  Scot- 
tish friends.  They  did  not,  like  Bentham  and  Austin, 
crack  a  set  of  logical  nuts,  in  the  effort  to  divide  and 
define  the  matter  and  the  leading  conceptions  of  law. 
But  they  applied  to  the  handling  of  their  own  concrete 
rules  and  problems  a  mastery  of  general  principles  and 
a  love  for  harmony  and  consistency  which  are  essentially 
philosophical.  They  were  pervaded  by  the  sense  of  his- 
toric growth  and  change,  for  had  they  not  before  them 
the  relations  of  the  old  and  the  new  in  many  institutions 
— the  development  of  Formula  beside  Legis  Actio,  of  lus 
Gentium  beside  lus  Civile,  of  Bonorum  possessio  beside 
Haereditas,  of  Longi  temporis  praescriptio  beside  Usucapiof 
The  one  thing  in  which  it  may  be  said  that  a  systematic 

1  There  was  practically  only  one  set  of  laws  or  customs  belonging  to  highly  civi- 
lized communities  which  the  Romans  could  compare  with  their  own  law,  those, 
namely,  which  they  found  in  the  various  Greek  cities.  These  laws  and  customs, 
though  varying  a  good  deal  in  detail,  from  city  to  city,  seem  to  have  borne  a  fa- 
mily likeness  to  one  another.  The  laws  of  the  Italic  cities  were  probably  on  the 
whole  similar  to  those  of  Rome  herself.  But  the  customs  of  the  Carthaginians,  of 
the  Syrians,  and  of  the  Egyptians,  had  many  peculiar  features. 


THE   METHODS  OF  Li:<;\l.   sf'IKVCE  633 

science  of  law  might  have  helped  them  was  the  arrange- 
ment and' distribution  of  topics.  For  this  they  certainly 
cared  little  and  did  little.  But  the  taste  for  systematic 
arrangement  was  never  strong  in  the  ancient  world. 
Perhaps  the  modern  appreciation  of  it  dates  back  to  the 
scholastic  philosophy  of  the  Middle  Ages,  which  spent 
much  thought  on  what  the  logicians  called  Division. 
Perhaps  it  has  been  reinforced  by  the  more  recent  pro- 
gress of  Natural  History,  which  furnishes  in  the  clas- 
sification of  the  animal  and  vegetable  kingdoms  the 
grandest  example  of  orderly  schemes  of  distribution 
based  on  scientific  lines. 

This  excellence  of  the  Romans  in  the  sphere  of  con- 
crete law  confirms  the  view  we  were  led  to  take  that  the 
contents  of  a  Philosophy  or  Science  of  Law  in  general 
are  not  large,  being  indeed  confined  to  the  defining  of 
the  relation  of  Law  to  Ethics  and  other  cognate  branches 
of  philosophy,  and  to  the  examination  of  some  funda- 
mental legal  conceptions,  important  no  doubt,  but  not 
very  numerous.  The  solid  and  essential  value  of  legal 
science  begins  in  the  manipulation  of  the  material  pre- 
sented by  an  actual  system  of  law,  in  the  moulding  of 
the  old  customs  so  as  to  reconcile  them  with  the  always 
changing  needs  of  the  people.  And  this  has  been  the 
doctrine  and  practice  of  the  greatest  foreign  masters  of 
the  Roman  law  in  modern  times.  It  was  the  doctrine 
of  Savigny,  who  opposed  his  historical  method  to  the 
abstractions  of  the  contemporary  Hegelians,  and  it  pre- 
vailed in  the  struggle.  I  remember  the  way  in  which  it 
was  conveyed  to  me  by  one  of  the  greatest  of  Savigny's 
school,  Dr.  Karl  Adolf  von  Vangerow,  to  whose  brilliant 
and  stimulating  lectures  I  listened  at  Heidelberg,  now 
many  years  ago.  Inspired  by  my  Scottish  and  Oxford 
training  with  the  notion  that  in  order  to  study  a  sub- 
ject rightly  one  must  begin  with  its  metaphysics,  I  asked 
the  professor,  on  one  of  the  days  when  his  students  were 
permitted  to  call  on  him,  what  book  on  the  Philosophy 
of  Law  (Rechts philosophic)  I  ought  to  read.  He  raised 


634  THE  METHODS  OF  LEGAL  SCIENCE 

his  eyebrows  till  they  seemed  to  reach  the  top  of 
his  head,  and  said  with  a  deprecating  wave  of  his  hand, 
'  I  doubt  whether  that  kind  of  reading  will  help  you 
with  your  legal  studies.  I  see  little  use  in  it.  But  if 

you  really  do  want  to  study  such  a  topic well,  there  is 

the  Naturrccht  of  my  colleague  Herr  Dr.  Roder:  you 
can  look  at  it.'  Nearly  all  the  jurists  to  whom  the  de- 
velopment of  modern  Roman  law  in  the  nineteenth  cen- 
tury in  Germany  has  been  due  have  taken  a  similar 
view,  and  have  spent  their  powers  either  on  the  same 
questions  as  those  which  occupied  the  Roman  sages  or 
on  the  application  of  Roman  principles  and  doctrines 
to  the  phenomena  and  conditions  of  modern  times,  and 
especially  of  modern  commerce.  They  have  been  philo- 
sophical in  their  use  of  the  analytic  and  historical 
methods,  philosophical,  that  is  to  say,  as  compared  with 
Lord  Coke  or  Lord  St.  Leonards,  and  they  have  greatly 
improved  on  the  division  and  classification  of  topics 
which  we  find  in  the  Roman  books.  But  they  have 
troubled  themselves  about  the  abstract  philosophy  of 
law  just  as  little  as  those  two  famous  judges,  or  as  those 
august  Romans  who  divided  their  time  between  the  com- 
position of  legal  treatises  and  advising  the  Emperor  on 
the  ordinances  which  he  issued  for  the  whole  civilized 
world. 

Not  a  few  of  the  great  Roman  jurists  (including  Julian, 
Papinian,  and  Ulpian)  sat  in  the  imperial  consistory,  and 
were  practically  not  only  judges  of  the  highest  Court  of 
Appeal  but  also  legislators.  An  estimate  of  their  scien- 
tific merits  must  include  this  branch  of  their  activity, 
whether  as  settling  the  form  of  decrees  to  be  passed  by 
the  Senate,  or  as  drafting  enactments  to  be  issued  in 
the  name  of  the  Emperor.  For  legal  science  is  not 
merely  either  expository  on  the  one  hand,  or  on  the 
other  dispensatory  and  corrective,  securing  to  each 
what  is  his,  but  is  also  Constructive  and  Ameliorative, 
framing  rules  under  which  society  may  advance  steadily 
and  smoothly,  may  get  rid  of  obsolete  doctrines,  may 


THE  METHODS  OF  LEGAL  SCIENCE  636 

find  new  facts  adequately  dealt  with  under  new  rules. 
It  was  a  great  advantage  for  the  Empire,  and  one  which 
furnished  some  compensation  for  the  absence  of  repre- 
sentative legislatures  that  the  business  of  law-making 
lay  in  the  hands  of  competent  legal  experts.  Legislation 
presents  itself  to  us  as  being  above  all  things  an  expres- 
sion of  the  will  of  the  people,  who  know  where  the  shoe 
pinches  them,  and  have  the  general  interest,  not  that  of 
a  monarch  or  a  privileged  class,  in  their  minds.  Yet  a 
wise  despot,  with  pure  purposes  and  a  command  of  the 
best  legal  advice,  may  be  expected  to  legislate  in  the 
general  interest,  and  most  of  the  legislation  of  the  em- 
perors during  the  first  three  centuries,  though  it  was 
often  misguided  in  the  sphere  of  financial  administra- 
tion, was  conceived  in  the  interest  of  the  population  at 
large.  What  was  specially  due  to  the  lawyers  who  ad- 
vised the  Emperor  was  the  policy  followed  in  amending 
the  general  private  law,  and  in  bringing  it  into  a  more 
orderly  and  consistent  condition.  In  this  respect  they 
vindicated  their  claim  to  be  truly  scientific.  The  work 
of  law  reform  went  on  upon  broad  principles,  unhasting 
and  unresting,  till  the  anomalies  and  injustice  of  the  old 
system  had  been  almost  entirely  removed.  Yet  there 
was  left  for  a  long  time  in  the  provinces  a  local  variety 
of  law  which  corresponded  to  and  respected  the  local 
needs  and  sentiments  of  the  populations.  No  passion 
for  a  rigid  uniformity  seems  to  have  blinded  the  advisers 
of  the  Emperor  to  the  truth  that  the  first  business  of  law 
is  to  subserve  the  well-being  of  the  people  and  to  win 
their  confidence  as  well  as  command  their  obedience.  In 
this  respect  also  they  were  not  merely  '  priests  of  jus- 
tice/ as  they  liked  to  call  themselves,  but  also  worthy 
servants  of  science.  The  Roman  Empire  maintained 
itself  in  the  East  for  more  than  eleven  centuries  after 
the  last  of  the  classical  jurists.  In  the  West  its  influence 
survived  its  political  existence,  and  its  law  in  particular 
became  the  foundation  of  that  which  came  to  prevail 
over  Continental  Europe.  As  it  was  largely  owing  to 


636  THE  METHODS  OF  LEGAL  SCIENCE 

the  strength  derived  from  its  legal  and  administrative 
structure  that  the  Eastern  Empire  lived  so  long,  so  the 
permanence  of  the  Roman  law  in  the  West  is  some  proof 
of  the  attachment  of  the  people  to  it,  and  so  of  its  in- 
trinsic merits.  Both  facts  are  alike  a  tribute  "to  the 
scientific  character  of  the  system  and  to  the  scientific 
genius  of  the  men  who  moulded  it.  For  no  system  could 
have  passed  through  the  changes  which  the  East  under- 
went, or  survived  the  storms  which  broke  upon  the 
West,  save  one  which  by  the  dominance  of  clear  and 
broad  principles  and  the  symmetrical  development  of 
rules  from  those  principles  had  become  at  once  intelli- 
gible, flexible,  and  consistent. 

Let  us   see  what  are  the   conclusions   to  which  we 
have,  by  this  somewhat  devious  course,  been  led. 

I.  There  are  four  chief  methods  of  studying  law — 
the  Metaphysical,  the  Analytical,  the  Historical,  and  the 
Comparative. 

II.  Each  of  these  has  its  proper  sphere  and  its  dis- 
tinctive value,  even  if  the  two  latter  are  of  most  general 
practical  service. 

III.  All  four  ought  to  find  a  place  in  a  complete 
scheme  of  legal  training. 

IV.  The  two  former  are  applicable  only  to  the  rudi- 
ments and  to  some  particular  parts  of  the  subject,  the 
two  latter  are  profitable  all  through  it,  and  especially  so 
when  they  can  be  combined. 

V.  The  Roman  jurists  pass  so  lightly  over  the  theo- 
retical side  of  law  that  the  first  method  supplies  them 
with  little  more  than  a  few  general  phrases.    Although 
their  definitions  are  the  result  of  analysis,  they  do  not 
formally  or  of  set  purpose  employ  the  second.    They  use 
the   Historical   method   freely,   though   almost   uncon- 
sciously.   At  one  stage  in  the  growth  of  their  law  they 
applied  to  some  extent  the  Comparative  method,  being 
led  to  it  by  the  facts  they  had  to  deal  with.     But  they 
seldom  mention  any  law  but  their  own. 

VI.  The  Romans,  though  saying  little  about  the  broad 


THE  METHODS  OF  LEGAL  SCIENCE  637 

aspects  or  so-called  Philosophy  of  Law,  do  in  fact  pur- 
sue it  in  a  philosophic  spirit;  and  to  this  spirit  the  ex- 
cellence of  their  system  is  largely  due. 

VII.  Their  example  shows  us  that  it  is  not  the  effort 
to  discuss  law  in  a  metaphysical  or  abstract  way  that 
makes  a  body  of  law  truly  philosophical,  but  rather  the 
power  of  so  framing  general  rules  as  to  make  them  the 
expression  of  legal  principles,  and  of  working  out  these 
rules  into  their  details  so  as  to  keep  the  details  in  har- 
mony with  the  principles. 

In  other  words,  it  is  Reasonableness,  Simplicity,  Self- 
consistency  that  make  the  excellence  of  a  legal  system, 
and  the  best  methods  of  study  are  those  which  attune 
the  lawyer's  mind  to  seek  after  these  qualities,  and  which 
enable  him  to  hold  a  middle  course  between  viewiness 
and  the  pursuit  of  an  impossible  perfection  on  the  one 
hand  and  bondage  to  the  letter  on  the  other. 


XIII 

THE   RELATIONS   OF   LAW  AND 
RELIGION 

THE   MOSQUE   EL   AZHAR 

To  the  modern  European  world  Religion  and  Law 
seem  rather  opposed  than  akin,  the  points  of  contrast 
more  numerous  and  significant  than  the  points  of  re- 
semblance. They  are  deemed  to  be  opposed  as  that 
which  is  free  and  spontaneous  is  opposed  to  that  which 
is  rigid  and  compulsive,  as  that  which  belongs  to  the 
inner  world  of  personal  conscience  and  feeling  is  op- 
posed to  that  which  belongs  to  the  outer  world  of  social 
organization  and  binding  rights.  The  one  springs  from 
and  leads  to  God,  who  is  the  beginning  and  the  end  of 
all  religious  life ;  the  other  is  enforced  by  and  itself 
builds  up  and  knits  together  the  State.  Even  where  the 
law  in  question  is  the  revealed  Law  of  God  the  contrast 
remains.  The  efforts  wrhich  we  find  in  the  New  Testa- 
ment, and  especially  in  some  of  St.  Paul's  Epistles,  to 
reconcile  the  law  delivered  to  Israel  with  the  dispensa- 
tion of  the  New  Covenant,  all  point  to  and  assume  an 
antagonism.  Grace,  that  is  to  say,  the  spontaneous 
goodness  and  favour  of  God,  is  felt  as  the  antithesis  to 
the  Law;  and  it  is  only  when  human  nature  has  been 
brought  into  complete  accord  with  God's  will  that  the 
antithesis  vanishes,  and  we  have  the  Perfect  Law  of 
Liberty. 

This  law  of  liberty,  moreover,  is  not  positive  law  at 


TEE  RELATIONS  OF  LAW  AND  RELIGION  639 

all,  but  supersedes  that  law ;  for  when  all  men  have  been 
so  made  perfect,  the  need  for  human  law  has  ceased  be- 
cause their  several  wills,  being  in  accord  with  the  will 
of  God,  must  needs  be  also  in  accord  with  one  another. 

This  antagonism  of  Law  and  Religion  has  been  con- 
spicuous in  the  relations  to  each  other  of  the  lines  of 
thought  followed  by  the  ministers  of  religion  on  the  one 
hand  and  the  students  or  practitioners  of  law  on  the 
other.  In  the  theology  of  the  Reformers  of  the  six- 
teenth and  two  following  centuries  Legalism  is  a  term 
of  reproach  and  is  contrasted  with  the  freedom  of  the 
Gospel.  Readers  of  the  Pilgrim's  Progress  will  remem- 
ber the  part  played  in  it  by  old  Mr.  Legality.  The  clergy 
have  been  apt  to  dislike  lawyers,  to  accuse  them  of 
cramping  the  freedom  of  the  Church,  and  of  desiring 
to  bind  it  in  State  fetters.  Erastianism,  of  which  some 
lawyers  and  statesmen  have  been  known  to  be  proud, 
is  a  name  of  dark  reproach  on  ecclesiastical  lips,  while 
the  legal  profession  on  its  part,  though  it  has  always  had 
to  yield  precedence  to  the  other  gown,  conceives  that 
the  Church  needs  to  be  strictly  controlled,  gladly  seizes 
occasion  for  limiting  the  action  of  her  ministers,  often 
suspects  them  of  trying  to  evade  or  pervert  the  law, 
and  is  prone  to  bring  accusations,  more  or  less  raifing, 
against  them,  as  seeking  to  compass  their  (possibly  ex- 
cellent) ends  by  irregular  or  even  illegal  methods. 

But  in  earlier  times,  and  in  many  countries,  the  two 
lines  of  thought,  the  two  branches  of  learning,  the  two 
professions,  whether  as  teaching  or  as  practising  profes- 
sions, were  either  united  or  deemed  to  have  a  close 
affinity.  In  the  lowest  forms  of  organized  society,  such 
as  we  find  among  the  aborigines  of  Canada  and  South 
Africa,  the  first  kind  of  profession  that  appears  is  usually 
that  of  the  wizard  or  practitioner  of  magic,  and  the 
rudiments  of  a  priest  are  developed  out  of  the  medicine 
man,  who  represents  the  most  rudimentary  form  of  the 
physician.  But  in  this  stage  of  progress  there  is  no 
religion  properly  so  called,  and  the  usages  that  prevail 


GiO  THE  RELATIONS   OF  LAW  AND  RELIGION 

and  which  are  the  material  out  of  which  law  will  grow, 
are  too  few,  too  rude,  and  too  often  interrupted  by 
violence,  to  form  a  system  of  settled  and  harmonized 
rules.  When,  however,  Religion  and  Theology  begin 
to  emerge  from  the  superstitions  of  the  savage  state, 
and  when  custom,  already  settled,  and  growing  more 
complex  with  the  progress  of  culture,  has  enabled  civil 
society  to  organize  itself  in  institutions,  Law  and  Theo- 
logy are  usually  found  in  close  affinity.  Law  everywhere 
begins  with  Custom.  Now  many  of  the  Customs  which 
form  Law  are  concerned  with  worship,  because  the  rela- 
tions they  regulate  are  relations  depending  on  religion. 
The  Family  is  a  religious  as  well  as  a  natural  organism, 
for  it  is  often  sacred,  and  in  many  peoples  is  held  to- 
gether by  the  common  worship  which  its  members  owe 
to  the  spirits  of  their  ancestors.  Hence  the  maxims  that 
regulate  marriage,  and  the  relation  of  parents  to  chil- 
dren, and  the  devolution  of  property,  have  a  religious 
basis,  and  are  precepts  of  religion  no  less  than  rules  of 
law.  To  take  vengeance  for  the  killing  of  a  near  rela- 
tive is  a  duty  which  the  pious  son  or  brother  owes  to 
the  ghost  of  the  slain;  while  on  the  other  side  the 
slaughter  has  created  a  legal  right  the  enforcement  of 
which,  by  compelling  the  payment  of  a  proper  compen- 
sation to  be  exacted  from  the  slayer  or  his  kinsfolk,  will 
also  satisfy  the  religious  obligation.  Other  relations 
of  men  to  one  another  not  primarily  religious  become 
so  by  being  placed  under  supernatural  protection. 
Where  a  promise  or  agreement  is  to  be  rendered  spe- 
cially binding,  the  party  engaging  himself  takes  an  oath 
invoking  the  Divine  Power,  and  perhaps  takes  it  at  a 
shrine,  or  (as  in  Iceland)  on  a  temple-ring,  or  (as  in  the 
Aliddle  Ages)  on  the  relics  of  a  saint.  These  contracts 
are  not  confined  to  private  affairs.  Treaties  are  made 
in  the  same  solemn  way.  Compacts  such  as  that  for 
the  single  combat  of  Paris  and  Menelaus  in  the  Iliad1, 

1  II.  iii.  276-280.     The  appeal  in  this  case  is  to  Zeus,  to  the  Sun,  to  the  Rivers  and 
to  the  Earth. 


THE  RELATIONS  OF  LAW  AND  RELIGION  641 

are  placed  under  the  sanction  of  the  gods  by  a  formal 
appeal  to  them  as  witnesses.  And  when  a  person  who 
had  violated  such  an  oath  dies  suddenly,  his  death  is 
ascribed  to  the  anger  of  the  Powers  to  whose  keeping 
his  promise  had  been  committed1.  In  such  cases  the 
priest  of  the  deity  invoked  is  apt  to  become  the  inter- 
preter of  the  obligation  undertaken,  or  the  arbiter  as 
to  how  far  it  has  been  performed.  Possibly  he  is  made 
the  keeper  of  an  object  for  which  safe  custody  is  desired, 
or  the  depositary  of  an  object  whose  ownership  is  dis- 
puted. Sometimes,  indeed,  it  is  rather  within  the  breasts 
of  chiefs  or  kings  (since  they  act  as  judges  and  exercise 
executive  power)  than  in  those  of  priests  that  the  know- 
ledge of  customs  and  maxims  is  deemed  to  reside.  But 
in  these  cases  the  royal  office  has  itself,  if  not  a  priestly, 
yet  a  sacred  character,  and  the  priest  plays  no  leading 
part  in  the  political  or  social  system.  The  nature  of  the 
religion,  and  its  more  or  less  mystical  tendency,  have 
of  course  a  good  deal  to  do  with  the  place  allotted  to 
the  priesthood  in  early  societies. 

Where  legal  rules  take  the  form  of  written  records 
embodying  what  is  held  to  have  been  delivered  to  a 
people  either  directly  by  the  deity  or  through  sages 
recognized  as  inspired  or  guided  by  some  divine  power, 
the  sanctity  of  law  reaches  its  maximum.  It  is  then  a 
part  of  religion,  and  those  who  know  it  and  expound  it 
have  a  religious  no  less  than  a  legal  function. 

In  such  documentary  records  Law  and  Religion  are 
often  so  closely  interwoven  as  to  be  scarcely  separable. 
Many  rules  are  secular  in  one  aspect,  religious  in  an- 
other, so  that  it  may  be  doubted  which  kind  of  motive 
prompted  them,  which  kind  of  object  they  were  designed 
to  secure.  A  regulation  of  ceremonial  purity  may  have 
its,  perhaps  forgotten,  origin  in  considerations  of  a  sani- 
tary nature.  A  sacrifice  prescribed  as  an  atonement 

1  Thus  we  are  told  by  an  early  Irish  annalist  that  'the  sun  and  the  wind  killed 
Laoghaire  (king  of  Ireland  in  the  time  of  St.  Patrick)  because  he  broke  his  oath  to 
the  men  of  Munster.' 
41 


642  THE  RELATIONS  OF  LAW  AND  RELIGION 

for  sin  may  also  operate  as  a  civil  penalty.  Offences 
against  the  community  may  be  deemed  primarily  of- 
fences against  the  deity  and  so  dealt  with;  and  a  fre- 
quent punishment  for  what  we  should  now  call  crimes 
is  to  devote  the  culprit  to  the  wrath  of  the  powers  of  the 
nether  world,  or  to  deprive  him  of  the  protection  of  those 
who  rule  the  upper  world,  and  therewith  expose  him  to 
outlawry,  the  oldest  of  all  legal  sanctions. 

In  nations  living  under  the  influence  of  such  ideas, 
the  exponents  of  Law  and  Religion  tend  to  be  the  same 
persons,  because  these  two  branches  of  public  admini- 
stration are  conceived  as  being  the  same,  or  at  least  two 
different  sides  of  the  same  thing.  Such  persons  may  or 
may  not  be  priests  performing  sacrifices  or  consulting 
the  deity  through  oracles,  or  omens,  or  a  sacred  lot. 
But  they  are  the  depositaries  of  the  sacred  traditions, 
and  it  is  they  who  interpret  those  traditions  and  apply 
them  to  concrete  cases.  As  such  they  are  usually  among 
the  ablest  and  most  educated  persons  in  the  community, 
sometimes  prominent  members  of  the  ruling  class. 

Yet  religion  must  not  in  such  a  state  of  society  be 
conceived  as  the  dominant  power,  which  gives  birth  to 
Law.  In  early  societies  the  duties  and  acts  which  belong 
to  the  external  or  secular  side  of  life  are  more  important 
than  is  the  part  of  life  concerned  with  the  emotions 
felt  towards  the  deity,  whether  of  reverence,  love,  or 
fear.  But  in  the  observance  of  all  the  established  cus- 
toms and  in  the  performance  of  all  the  prescribed  cere- 
monies, that  which  is  pleasing  to  the  gods  is  not  sepa- 
rated even  in  thought  from  that  which  is  salutary  for  the 
community.  The  service  of  the  deity  consists,  apart 
from  occasions  of  orgiastic  excitement,  not  in  the  emo- 
tional attitude  of  the  soul,  but  in  the  discharge  of  the 
duties  recognized  as  owed  to  the  family  and  the  commu- 
nity, duties  which  are  more  or  less  moral  according  to 
the  character  of  the  religion — for  righteousness  may 
hold  a  higher  or  a  lower  place  among  them — but  which, 
whether  they  relate  on  the  one  hand  to  sacrifices  offered 


'/'///•;   ISOLATIONS  OF  LAW  AND  RELIGION  643 

and  fasts  observed,  or  on  the  other  hand  to  the  fulfil- 
ment of  all  that  the  tribe  or  the  State  expects  from  its 
citizens,  are  external  duties.  In  most  early  nations, 
these  duties  are  prescribed  not  by  religious  emotion, 
but  by  settled  usages  and  rules  which  have  the  sanction 
alike  of  the  State  whose  welfare  is  involved  in  their  ob- 
servance, and  of  the  unseen  Powers  that  protect  it.  The 
people  have  not  yet  begun  to  distinguish  by  analysis 
the  three  elements  of  Law,.  Morality  and  Devotion, 
though  here  and  there  the  voices  of  lofty  spirits,  such 
as  the  prophets  of  Israel,  are  heard  proclaiming  the 
supremacy  of  the  law  of  righteousness  as  the  true  ex- 
pression of  the  Will  of  God,  and  obedience  to  it  as  the 
truest  service  that  can  be  rendered  by  His  creatures. 

The  relation  borne  by  Law,  Morality,  and  Worship, 
each  to  the  other,  differs  widely  in  different  peoples. 
The  student  of  early  society  must  be  always  on  his  guard, 
like  the  student  of  natural  history,  against  expecting  a 
greater  uniformity  than  in  fact  exists,  and  against  gene- 
ralizing broadly  from  a  few  striking  instances.  Even 
so  brilliant  a  speculator  as  Sir  Henry  Maine  fell  into 
the  error  of  assuming  the  system  of  paternal  power  to 
be  practically  universal  in  certain  stages  of  society. 
Among  our  Scandinavian  and  Low  German  ancestors, 
for  example,  it  would  appear  (so  far  as  our  imperfect 
data  go)  that  the  worship  of  the  gods  had  not  very  much 
to  do  with  legal  usages  and  civil  polity,  though  to  be 
sure  other  influences  came  in  at  a  comparatively  early 
stage  to  turn  the  current  of  their  development1.  The 
same  may  be  true  of  the  Gadhelic  tribes,  though  the 
knowledge  we  have  regarding  their  usages  and  worship 
while  still  heathen  is  lamentably  scanty.  There  is,  how- 
ever, in  the  records  of  early  Rome  and  of  the  Greeks, 
as  well  as  in  those  of  some  Eastern  nations,  a  good  deal 
to  illustrate  the  view  I  have  been  trying  to  state. 

1  But  in  Norway  the  Assembly  is  usually  held  at  a  temple,  as  in  Iceland  the 
GotSi  is  both  a  priest  and  a  chief,  and  the  temple  is  the  place  where  judicial  oaths 
are  taken.  See  Essay  V. 


644  THE  RELATIONS  OF  LAW  AND  RELIGION 

A  striking  example  of  conditions  of  thought  and  prac- 
tice in  which  religion  had  (at  a  comparatively  advanced 
stage)  been  so  involved  in  law  as  to  be  almost  stifled  by 
law  is  furnished  by  the  Jewish  people  as  we  find  them 
under  Roman  dominion.  The  lawyers  referred  to  in 
the  New  Testament 1  (a  class  of  whom  there  are  but 
few  traces  before  the  Captivity)  are  not  priests  (though 
of  course  a  priest  might  happen  to  be  learned  in  the 
law),  yet  they  have  a  quasi-sacerdotal  position  as  con- 
versant with  and  able  to  interpret  a  body  of  rules  which 
are  of  divine  origin,  and  embrace  the  relations  of  man 
to  God  as  well  as  to  his  fellow  men.  Between  religious 
duty  and  religious  ceremony  on  the  one  hand  and  the 
performance  of  civil  duties  on  the  other  there  is  no  line 
of  demarcation :  all  are  of  like  obligation  and  are  tried 
by  similar  canons.  Hence  piety  tends  to  degenerate  into 
formalism:  hence  the  precisians  who  insist  upon  petty 
externalities  and  neglect  the  weightier  duties  deserve 
and  incur  the  rebukes  of  a  higher  spiritual  teaching.  It 
may  indeed  be  said  that  one  great  part  of  the  work  re- 
corded in  the  Gospels,  regarded  on  its  historical  side, 
was  to  disjoin  Law  from  Religion  or  Religion  from 
Law.  And  this  work  was  performed  not  merely  by 
superseding  parts  of  the  law  known  as  that  of  Moses, 
or  by  giving  a  new  sense  to  that  law,  but  also  by  trans- 
forming Religion  itself,  purging  away  the  externals  of 
sacrifice  and  other  ceremonial  rights,  and  leading  the 
renewed  and  purified  soul  into  '  the  glorious  liberty  of 
the  people  of  God/ 

That  majority  of  the  Jewish  race  which  did  not  accept 
the  teachings  of  Christ  continued  for  many  centuries, 
scattered  and  depressed  as  it  was  after  the  destruction 
of  Jerusalem,  to  treat  its  ancient  law-books  and  the 
traditions  which  had  gathered  round  them  as  being  both 
a  body  of  civil  rules  and  a  religious  guide  of  life.  De- 

1  The  ypa/u./u.aT€t5  (scribes),  VOJUUKOI  (lawyers),  and  vo/uofiiSao-KaAoi  (doctors  of  the 
law)  of  the  New  Testament  seem  to  be  different  names  for  the  same  class,  and  iden- 
tical with  the  iepo-ypafA/uaTet?  of  Josephus. 


THE  RELATIONS   OF  LAW  AND  RELIGION  645 

spite  the  tendency  to  formalism  which  has  been  noted, 
there  were  among  the  Rabbis  of  the  early  centuries  A.D. 
not  a  few  who  dwelt  upon  the  moral  and  emotional  side 
of  the  Mosaic  Law,  and  who  through  it  sustained  the 
spirit  of  the  sorely  tried  nation. 

In  the  Christian  Church  also  ceremonies  and  external 
observances  came  before  long  to  play  a  great  part  in 
worship,  and  were  for  ages  an  essential  element  in  the 
popular  conception,  indeed  in  the  practically  universal 
conception,  of  Christianity  itself  both  as  a  theology  and 
as  a  religion.  The  atmosphere  which  surrounded  nascent 
Christianity  was  an  atmosphere  saturated  with  rites  and 
observances.  There  were  in  the  primitive  Church  some 
few  usages  and  in  the  New  Testament  some  few  texts 
on  which  it  was  possible  to  erect  a  fabric  of  ceremonial 
worship.  But  even  if  these  conditions  had  been  absent, 
the  tendencies  of  human  nature  to  create  a  body  of 
ritual  and  to  attach  a  sort  of  legal  sanction  to  the 
external  duties  which  custom  prescribed  would  have 
prevailed. 

How  far  the  rites  and  practices  which  nearly  every 
branch  of  the  Christian  Church  has  to  a  greater  or  less 
extent  enjoined  are  each  of  them  interwoven  with  the 
vital  tenets  of  the  faith,  is  a  question  not  likely  to  be 
settled  in  any  future  that  we  can  foresee.  But  the  con- 
ception of  the  '  Kingdom  of  the  Heavens  '  as  something 
dissevered  from  the  obligations  imposed  by  legal  tradi- 
tion has  also  remained  ever  since  in  Christianity  as  a 
principle  of  profound  significance,  which  has  at  different 
times  emerged  in  various  forms  to  become  sometimes 
a  destroying,  sometimes  a  vivifying  and  transforming 
force.  Such  sayings  as  '  Where  the  Spirit  of  the  Lord 
is,  there  is  liberty,'  or  '  He  hath  made  you  kings  and 
priests  to  God/  or  '  Ye  are  not  under  the  Law  but  under 
Grace/  have  from  time  to  time  roused  men  to  hold 
themselves  delivered  from  all  bonds  of  custom  ex- 
pounded or  rules  enforced  by  ecclesiastical  authority. 

I  will  not,  however,  attempt  to  follow  out  the  intricate 


646  THE  RELATIONS   OF  LAW  AND  RELIGION 

relations  between  the  two  conceptions,  as  they  appear 
in  the  long  course  either  of  Christian  or  of  Jewish  an- 
nals, but  will  pass  on  to  consider  the  phenomena  of  their 
connexion  in  another  field,  one  in  which  the  phenomena 
are  comparatively  simple,  and  lie  open  to-day  to  the 
study  of  every  traveller  in  a  land  where  the  old  and  the 
new  stand  in  striking  contrast. 

The  best  modern  instance  of  the  identity  of  Religion 
and  Law  is  to  be  found  in  that  originally  misconceived 
and  subsequently  perverted  form  of  Judaism  which  still 
prevails  extensively  over  the  eastern  world,  and  recog- 
nizes Muhamad  of  Mecca  as  the  last  and  greatest  of  the 
prophets  of  Jehovah.  In  Islam,  Law  is  Religion  and 
Religion  is  Law,  because  both  have  the  same  source 
and  an  equal  authority,  being  both  contained  in  the  same 
divine  revelation.  I  cannot  better  illustrate  their  union 
than  by  giving  a  short  account  of  an  ancient  and  splen- 
did University  where  they  are  taught  as  one,  hoping 
that  so  much  of  digression  as  is  thereby  involved  will 
be  pardoned  in  respect  of  the  interest  which  this  famous 
seat  of  learning  deserves  to  excite,  and  of  the  light  which 
it  casts  on  the  early  history  of  the  Universities  of  Europe 
— of  Bologna  and  Paris,  of  Padua  and  Salamanca  and 
Prague,  and  of  our  own  Oxford  and  Cambridge. 

About  three  hundred  and  fifty  years  after  Muhamad, 
and  towards  the  end  of  the  tenth  century  of  the  Chris- 
tian era,  Johar,  general  of  the  Fatimite  Sultans  estab- 
lished at  Tunis,  conquered  Egypt.  When  he  built  Cairo 
(El  Kahira,  '  the  Victorious  '),  not  far  from  the  decayed 
Memphis,  he  founded  in  the  new  city  a  mosque  which 
presently  obtained  the  name  of  El  Azhar,  that  is  to  say, 
'  The  Flowers  '  or  '  The  Flourishing.'  The  Fatimites, 
belonging  to  the  schismatic  sect  of  the  Shiites,  were 
particularly  anxious  to  establish  their  ecclesiastical  posi- 
tion against  the  orthodox  Sunnites,  and,  just  as  Pro- 
testant princes  in  the  sixteenth  century  founded  uni- 
versities for  the  defence  of  their  tenets — as,  for  instance, 
Elector  John  of  Saxony  set  up  the  University  of  Jena 


THE  RELATIONS  OF  LAW  AND  RELIGION  647 

— so  the  second  Fatimite  ruler  of  Egypt,  Khalif  Aziz 
Billah,  resolved  to  attract  learned  men  to  his  capital. 
He  gathered  famous  teachers  to  the  Mosque,  and  there 
was  soon  a  great  afflux  of  students.  Sultan  Hakim 
(probably  a  madman),  who  went  so  far  beyond  the  doc- 
trines of  Shiism  as  to  declare  himself  an  incarnation  of 
AH  and  a  Mahdi,  closed  El  Azhar,  and  transferred  the 
I'niversity  to  another  mosque  which  he  had  founded. 
However,  the  teaching  staff  was  subsequently  brought 
back  to  El  Azhar  (which  returned  finally  to  Sunnite 
orthodoxy  with  the  conquest  of  Egypt  by  Saladin  in 
1171  A.D.),  and  it  has  been  now  for  many  centuries  the 
greatest  University  in  the  Musulman  world,  being  situ- 
ate in  what  has  been,  since  the  decline  of  Bagdad,  the 
greatest  purely  Musulman  city1.  The  number  of  stu- 
dents sometimes  reaches  ten  thousand ;  at  the  time  of 
my  visit  (in  1888)  it  was  estimated  at  eight  thousand. 

The  whole  teaching  of  the  University  is  carried  on 
within  the  walls  of  the  Mosque,  a  large  group  of  build- 
ings, approached  by  six  gates,  and  standing  in  the  oldest 
part  of  Cairo.  The  chief  entrance  is  from  the  Alley 
(or  arcade)  of  the  Booksellers  in  the  Bazaar.  At  the 
outer  portal,  in  the  portico,  the  visitor  leaves  his  shoes. 
To  the  left  of  the  inner  portal  I  found  a  noble  square 
hall,  said  to  date  from  the  fourteenth  century,  as  lofty 
as  the  chapel  of  Magdalen  College  and  about  as  large, 
though  different  in  shape,  with  beautiful  marbles  on 
the  walls,  and  an  aisle  separated  from  the  rest  of  the 
chamber  by  a  row  of  tall  columns,  supporting  slightly 
pointed  arches.  The  sunlight  came  in  through  large 
openings,  filled  by  no  glass,  under  the  roof.  In  the 
centre  there  were  sitting  or  kneeling  or  crouching  some 
eighty  or  ninety  men  in  an  irregular  circle,  mostly  young 
men,  yet  many  over  thirty  and  some  as  old  as  fifty,  with 

1  Stambul  (Constantinople)  is  larger,  but  Stambul  has  always  had  a  large  Chris- 
tian element,  whereas  Cairo  was  till  about  thirty  years  ago  almost  wholly  Mu- 
hamadan.  Moreover  Cairo  was  better  situated  for  drawing  students  from  North 
Africa  and  Western  Asia  than  Stambul,  which  is  almost  on  the  outermost  edge  of 
the  Musulman  world. 


648  THE  RELATIONS   OF  LAW  AND  RELIGION 

their  shoes  laid  beside  them  on  the  matting.  In  front  of 
them,  sitting  cross-legged  on  a  low  wooden  throne,  was 
an  elderly  professor,  holding  a  book  in  his  hands,  and 
appearing  to  read  from  it.  Now  and  then  a  question 
came  to  him  from  the  circle,  which  he  answered  quickly ; 
but  otherwise  the  audience  were  perfectly  still,  and  no 
sound  was  heard  save  his  own  low  voice  and  the  beat- 
ing of  the  wings  of  the  birds  as  they  flew  to  and  fro 
above.  The  book  was  an  authoritative  commentary  on 
the  Sacred  Law,  to  which  he  added  his  own  explanations 
as  he  read;  and  he  was  treating  of  the  four  requisites 
of  prayer,  especially  of  the  first  of  the  four,  viz.  Devo- 
tional Intent.  No  one  took  notes,  but  all  listened  with 
the  closest  attention.  He  was  the  Chief  Sheykh  of  the 
Mosque,  and  in  virtue  of  his  office,  also  the  Sheykh  ul 
Islam  or  chief  ecclesiastical  and  legal  authority  of  Egypt, 
which,  being  expressed  in  the  terms  of  an  English  Uni- 
versity, would  make  him  Chancellor,  Regius  Professor 
of  Divinity  and  Regius  Professor  of  Civil  Law  rolled 
into  one,  and  therewithal  also  Archbishop  of  Canterbury 
and  Lord  High  Chancellor. 

In  the  similar  but  rather  less  spacious  and  ornate 
room  opposite  I  found  another  class,  smaller,  and  com- 
posed of  somewhat  younger  men,  listening  to  a  lecture 
on  what  the  Muslims  call  Dealings,  i.e.  civil  law.  The 
subject  was  Wills,  and  the  requisites  to  the  validity  of  a 
will,  such  as  the  sanity,  freedom  and  full  age  of  the  tes- 
tator, were  being  explained  with  reference  to  a  book  of 
authority  which  lay  before  the  lecturer,  a  younger  man 
than  the  Chief  Sheykh.  He  spoke  with  a  fluency,  clear- 
ness and  evident  power  of  interesting  the  class,  which 
reminded  me  o-f  a  brilliant  teacher  whom  I  had  heard 
twenty-five  years  before  discoursing  on  the  same  subject 
at  Heidelberg. 

Led  hence  under  the  lofty  gateway  which  gives  ac- 
cess to  the  great  court,  I  saw,  like  an  earlier  traveller, 
characters  inscribed  above  the  gate,  and  was  told  by  my 
Virgil  that  their  import  was — 'Actions  must  be  judged 


THE  RELATIONS  OF  LAW  AND  RELIGION  649 

by  their  intent,  and  every  man  shall  be  requited  accord- 
ing to  what  he  purposed  ' — a  maxim  which  belongs  in 
one  sense  to  religion,  in  another  to  law,  but  requires, 
like  the  corresponding  phrase  of  our  civilians — Actus 
non  cst  reus  nisi  mcns  sit  rca — to  be  carefully  defined  and 
qualified  before  it  can  be  applied,  seeing  how  often  good 
intent  is  followed  by  bad  result. 

The  great  Court  of  the  Mosque  is  a  quadrangle  nearly 
as  large  as  that  of  Christ  Church,  Oxford,  and  was  once, 
like  that  of  Christ  Church,  surrounded  by  arcades  rest- 
ing on  columns,  of  which  now  only  a  few  remain.  There 
are  three  tanks  for  ablutions  and  a  great  cistern  of  Nile 
water  beneath,  whence  vessels  are  filled  by  boys  who 
carry  it  round  among  the  groups.  It  is  the  hour  of 
forenoon  rest  between  the  morning  lecture  and  the 
noontide  meal,  and  a  confused  din  of  many  voices  rises 
from  the  six  or  seven  hundred  persons  scattered  through 
the  quadrangle,  whose  ample  space  they  do  not  crowd. 
The  men,  mostly  young,  are  sitting  or  lying  all  over  the 
flagged  surface,  reading  or  talking  or  reciting  with  a 
book  open  before  them,  many  swaying  backwards  and 
forwards  as  they  chant,  all  in  the  blaze  of  sunlight. 
Piles  of  thin,  tough  cakes,  of  which  more  anon,  stand 
here  and  there.  Through  the  groups  walks  a  sturdy  offi- 
cial bearing  aloft  a  formidable  symbol  of  order,  two 
long  and  heavy  flat  strips  of  leather  attached  to  a  stout 
handle,  wherewith  he  coerces  any  disturber  of  the  peace 
of  the  Mosque.  Discipline  is  easily  maintained,  for  the 
Oriental,  unless  violently  excited,  is  submissive  to  au- 
thority, and  dangerous  only  in  a  mob.  Moreover  the 
students  are  mostly  poor,  and  therefore  attentive  to  their 
studies.  The  arcade  on  the  south-east  side  is  filled  with 
knots  of  boys  from  eight  to  fourteen  years  of  age  sitting 
round  their  teachers,  each  with  a  metal  slate,  a  brass 
ink-horn,  and  a  reed  pen ;  some  gathered  round  a  teacher 
armed  with  a  long  palm  stick.  They  read  aloud  from 
the  slate  what  they  have  written,  thus  learning  by  heart 
verses  of  the  Koran,  copies  of  which  are  set  up  on 


650  THE  RELATIONS   OF  LAW  AND  RELIGION 

wicker  stands,  because  the  sacred  volume  must  never 
be  lower  than  the  reader's  waist. 

Adjoining  the  great  quadrangle  is  the  Liwan,  or  hall 
for  prayer  and  preaching.  It  is  really  two  parallel  halls, 
partially  separated  by  a  wall,  and  divided  into  nine  aisles 
by  rows  of  columns  nearly  four  hundred  in  number,  the 
shafts  of  granite  or  marble  with  carved  capitals.  They 
were  doubtless  brought  hither  from  Christian  churches 
long  since  destroyed1,  churches  that  may  have  echoed 
to  the  voices  of  Athanasius  and  of  Cyril.  Along  the 
side  towards  Mecca  are  four  short  recesses  (Kiblas) 
resembling  the  apses  of  an  early  Christian  basilica, 
though  much  smaller,  one  for  each  of  the  four  legal 
orthodox  sects  of  Muslims.  Beside  the  chief  Kibla  there 
is  placed,  high  up  on  the  wall,  a  small  wooden  box  con- 
taining relics,  among  which  is  one  equally  fit  to  be  re- 
vered by  Jews,  Christians  and  Muslims,  viz.  a  piece  of 
Noah's  Ark.  The  effect  of  the  hall  is  due  rather  to 
its  vastness  and  to  the  maze  of  pillars  than  to  any  beauty 
in  form  or  decorations ;  for  the  walls  are  plain,  and  the 
low  roof  makes  the  interior  more  sombre  than  either 
the  famous  mosque  of  Kerwan  or  the  still  more  rich 
and  majestic  mosque  of  the  Ommiyad  Khalifs  at  Cor- 
dova. As  I  entered  this  Liwan,  the  hour  of  midday 
prayers  had  arrived,  and  the  crowd  of  students  rose 
suddenly  and,  turning  towards  the  four  Kiblas,  per- 
formed their  devotions.  This  done,  the  multitude,  pass- 
ing noiselessly,  for  every  foot  is  unshod,  through  the 
maze  of  columns,  sorted  itself  into  classes,  each  grouped 
in  an  incomplete  circle  round  its  own  professor.  Every 
regular  professor  has  his  column,  at  whose  foot  he 
sits,  leaning  against  it ;  and  here  he  reads  or  talks  loudly 
enough  to  be  heard  over  the  din  by  those  near  him,  for 
the  clamour  of  many  voices  is  lessened  by  the  amplitude 
of  the  chamber.  The  younger  or  less  privileged  lec- 

1  The  columns  of  the  ancient  and  most  sacred  mosque  at  Kairoan  or  KeYwan 
(in  the  territory  of  Tunis),  built  by  Sidi  Okba,  the  conqueror  of  North  Africa,  were 
brought  from  Christian  churches,  and  many  from  the  great  basilica  of  Carthage, 
the  floor  of  which  has  been  recently  uncovered. 


THE  RELATIONS  OF  LAW  AND  RELIGION  651 

turers  mostly  gather  their  hearers  outside  the  Court, 
though  I  found  a  class  of  youths  learning  the  elements 
of  grammar  at  the  foot  of  one  of  the  Liwan  columns. 
The  lectures  were  mostly  on  grammar,  which  has  a 
religious  side,  because  it  includes  prosody  and  the  proper 
pronunciation  of  the  Koran.  One  eminent  professor, 
who  was  also  Select  Preacher  for  the  time  being,  was 
discoursing  on  Ibn  Malek's  treatise  on  Arabic  Gram- 
mar, holding  in  his  hand  the  treatise,  which  is  a  poem 
of  one  thousand  verses.  All  the  class  had  copies,  and 
continued  to  listen  with  untroubled  gravity  while  a  cat 
walked  across  between  them  and  the  professor.  An- 
other teacher,  lecturing  on  logic,  was  being  interrupted 
by  a  running  fire  of  questions  from  his  pupils,  which  he 
answered  with  swift  promptitude  and  terseness. 

There  are  about  two  hundred  and  thirty  professors, 
that  is  to  say,  persons  authorized  to  teach  and  engaged 
in  teaching1.  As  in  the  universities  of  mediaeval  Eu- 
rope, graduation  consists  in  a  certificate  of  competence 
to  teach ;  and  this  is  given  to  those  who  have  spent  the 
prescribed  time  in  study  by  inscribing  in  the  copy  of 
the  book  which  the  graduate  has  been  studying  a  state- 
ment by  the  teacher  that  he  has  mastered  the  contents 
of  that  book.  When  a  certificate  of  wider  attainments 
is  sought,  the  candidate  is  examined  orally  by  two  or 
three  sheiks.  As  in  the  Middle  Ages,  there  are  no 
written  examinations ;  and  indeed  writing  is  but  little 
used,  the  aim  of  teaching  being  rather  to  cultivate  the 
memory.  The  books  studied  are  always  the  same,  so 
there  is  no  occasion  for  examination  statutes  and  No- 
tices of  Boards  of  Studies.  The  freshman  begins  with 
what  is  called  Balagha,  the  use  of  language,  a  subject 
which  comprises  grammar,  logic  (with  the  elements  of 
metaphysics),  and  rhetoric.  Next  follows  theology,  the 
Nature  of  God  and  the  functions  of  the  Prophet,  after 
which  comes  the  Law,  including  both  the  precepts  of 

1  In  the  session  of  1898-9  there  were  198  professors  and  7,676  students  attached 
to  the  Mosque  itself  (without  counting  its  dependent  Kuttabs). 


652  THE  RELATIONS  OF  LAW  AND  RELIGION 

religion  as  applied  in  practice  and  those  of  what  we 
should  call  civil  or  secular  law,  both  of  them  based  on  the 
Koran  and  the  Hadith  or  sacred  tradition.  Instruction 
is  no  longer  given  in  medicine  here.  When  taught,  it 
was  taught,  as  it  is  still  in  the  University  of  Fez,  from  an 
Arabic  translation  of  Aristotle.  The  course  prescribed 
for  one  who  aspires  to  be  a  Kadi  (Judge  of  the  Sheriat 
or  Sacred  Law)  is  fourteen  years,  but  an  even  longer 
time  would  be  needed  to  fit  a  man  to  be  a  Mufti  or 
doctor  of  the  law.  Five  or  six  years,  I  was  told,  would 
qualify  a  student  to  become  a  village  schoolmaster,  able 
to  teach  the  elements  of  religion  and  to  advise  the 
peasants  on  questions  of  divorce,  just  as  in  rural  Eng- 
land the  schoolmaster  used  to  draw  wills,  with  much 
ultimate  benefit  to  the  legal  profession:  and  the  same 
length  of  study  might  enable  a  man  to  become  Imam 
(curate  in  charge)  of  a  small  mosque.  Study  consists, 
in  every  branch,  chiefly  in  learning  by  heart.  Even 
religion  is  taught  through  rules  for  prayer  and  alms- 
giving, which  must  be  exactly  remembered.  But  there 
is  also  a  large  field  for  the  development  of  subtlety  of 
mind  in  the  casuistical  distinctions  which  form  a  large 
part  of  law,  both  moral  and  civil.  Neither  physical 
science,  nor  history,  nor  any  language  save  Arabic  is 
recognized,  nor  (which  is  more  surprising)  do  arithmetic 
and  mathematics  now  find  a  place1. 

The  students  come  from  all  parts  of  the  Musulman 
world,  but  the  large  majority  from  Egypt:  and  the 
Muslim  legal  sect  to  which  most  Egyptians  belong  (the 
Shafite)  is  accordingly  the  most  numerous  2,  amounting 
to  nearly  half  the  total.  They  are  mostly  poor,  and  live 
to  some  extent  on  the  charitable  gifts  of  the  citizens, 

1  In  1896  (eight  years  after  my  visit)  instruction  began  to  be  provided  in  geome- 
try, algebra,  arithmetic  and  geography,  but  it  is  given  by  secular  teachers  ap- 
pointed by  the  Egyptian  Government,  not  by  the  regular  staff  of  the  Mosque. 
8  In  1898-9  the  numbers  of  the /our  sects  were  as  follows : 
Shafites— Professors,  86 ;  Students,  3,495- 
Hanefites— Professors,  41  ;  Students,  2,168. 
Malekites— Professors,  68  ;  Students,  1,983. 
Hanbalites— Professors,  3  ;  Students,  30. 


THE  RELATIONS  OF  LAW  AND  RELIGION  653 

paying  nothing  for  their  instruction.  But  a  certain  num- 
ber share  in  a  kind  of  endowment  which  deserves  notice, 
because  it  is  the  germ  of  a  College — a  germ,  however, 
which  never  grew  into  a  plant. 

The  word  Rizvak  (accent  on  the  last  syllable),  properly 
a  colonnade  or  corridor,  is  used  at  El  Azhar  to  denote 
an  apartment  or  set  of  apartments,  allotted  to  certain 
students  as  sleeping-quarters.  There  are  in  the  Mosque 
buildings  many  Riwaks,  and  several  are  set  apart  for 
students  coming  from  some  particular  countries1. 
There  is  one  for  the  Syrians,  one  for  the  natives  of 
Mogreb  (North-West  Africa,  from  Tripoli  to  Morocco), 
one  for  the  Kurds,  one  for  the  natives  of  Mecca  and 
Medina  (El  Haramein),  one  for  the  Sudanese  of  Sen- 
naar,  and  so  forth.  Some  are  well  ventilated  and 
comfortable,  such  as  that  endowed  by  Ratib  Pasha  for 
Hanefites :  some  plain  and  bare.  It  is  of  course  only  in 
the  three  or  four  colder  months  that  a  roof  is  needed; 
during  the  summer  nights  quarters  a  la  belle  ctoilc  are 
preferable.  Practically,  I  was  told,  every  student  who 
wished  could  obtain  quarters  in  a  Riwak,  because  only 
the  poor  desire  to  be  so  accommodated:  and  a  sleeping- 
place  means  no  more  than  a  bit  of  floor  on  which  to 
spread  your  prayer  carpet  and  place  your  chest  of  books 
and  clothes.  But  the  Riwaks  (or  most  of  them)  also 
supply  rations  of  bread  to  those  students  who  apply  for 
them  when  they  have  reached  a  certain  stage  of  pro- 
ficiency, that  is,  have  mastered  two  or  three  books  and 
obtained  a  certificate  to  that  effect.  These  rations  con- 
sist of  wheaten  cakes,  thin  and  tough,  and  are  supplied 
out  of  endowments  which  have  from  time  to  time  been 
bestowed  on  the  Mosque  or  on  particular  Riwaks  by 
pious  founders.  These  wheaten  cakes  are  in  fact  the 

1  Place  of  birth  constituted  an  important  basis  of  classification  in  mediaeval  Uni- 
versities. In  Oxford,  as  in  Paris,  the  students  were  divided  into  the  Northern  and 
Southern  nations  (whence  the  two  Proctors),  and  in  each  of  the  Universities  of 
Glasgow  and  Aberdeen  there  are  still  four  Nations,  a  system  of  organization  pre- 
served for  the  purposes  of  the  election  of  a  Lord  Rector.  Nations  exist  also  in  the 
University  of  Upsala. 


654  THE  RELATIONS  OF  LAW  AND  RELIGION 

very  rudest  form  of  what  is  called  in  Scotland  a  Bursary, 
and  in  England  an  Exhibition  or  Scholarship;  and  the 
assignment  of  a  Riwak  as  lodgings  to  students  from  a 
particular  district  may  be  compared  with  the  earliest 
provision  of  a  dwelling  and  a  pittance  for  students  in 
England,  the  acorn  out  of  which  there  has  grown  the 
superb  system  of  the  Colleges  of  Oxford  and  Cam- 
bridge, many  of  them  originally  connected  with  particu- 
lar counties. 

The  Mosque,  that  is  to  say  the  University,  as  dis- 
tinguished from  the  particular  Riwaks,  had  at  one  time 
considerable  endowments,  called  in  Arabic  Wakfs  (pro- 
nounced Wakufs) ;  but  a  large  part  of  these  endowments 
were  seized  by  Muhamad  Ali  early  in  the  nineteenth 
century  (about  1820).  In  respect  of  them  a  considerable 
sum  is  now  paid  from  the  public  treasury,  and  a  further 
income  is  derived  from  the  Wakfs  which  not  having  been 
seized,  are  now  administered  by  the  Government  depart- 
ment in  charge  of  charitable  foundations.  The  present 
income  of  such  foundations  as  remain  is  trifling,  and 
the  slender  incomes  of  the  senior  professors  are  supple- 
mented by  small  payments  from  Government  and  by 
gifts  from  pious  persons.  The  richer  students  are  also 
expected  to  offer  gifts,  and  sometimes  a  charitable  citi- 
zen will  send  a  sheep  to  give  the  poor  students  a  better 
dinner  on  a  feast-day1. 

Before  leaving  the  University  I  was  presented  to  its 
head,  the  Sheik  El  Azhar,  whom  I  found  sitting  to 
hear  and  determine  divers  matters,  his  lectures  having 
been  disposed  of  in  the  forenoon.  He  was  too  great 
a  man  to  rise  to  receive  me,  nor  is  it  easy  to  rise  when 
one  sits  cross-legged;  but  he  placed  his  hand  upon  his 
heart  with  a  dignified  courtesy  and  invited  me  to  seat 

1  In  1898-9  the  total  sum  paid  to  El  Azhar  out  of  the  public  treasury  was  LE 
(Egyptian  pounds)  6,611,  and  out  of  the  administration  of  the  Wakfs  LEs,224,  be- 
sides a  sum  of  LEi,si2  derived  from  the  endowments  of  the  several  Riwaks.  The 
best  endowed  Riwaks  are  those  of  the  Turks  (516)  and  of  the  Mogrebins  (364).  I 
owe  these  figures  to  the  kindness  of  my  friend  Yacoub  Artin  Pasha,  the  energetic 
and  enlightened  head  of  the  educational  administration  of  Egypt.  The  Egyptian 
pound  is  about  twenty  shillings  and  fourpence. 


THE  RELATIONS  OF  LAW  AND  RELIGION  655 

myself  beside  him.  His  disciples  were  kneeling  round 
him.  He  was  more  like  an  old  Lord  Chancellor  than 
an  old  archbishop,  with  an  air  rather  of  complacent  judi- 
cial shrewdness  than  of  apostolic  unction.  When  it  had 
been  explained  to  him  that  I  was  a  lawyer  and  that  law 
was  taught  in  the  Universities  of  England,  he  remarked 
that  religion  consists  in  conduct  and  behaviour,  whereto 
I  replied  that  the  Roman  jurists  stated  another  side  of 
the  same  truth  when  they  said/  luris  praecepta  haec  sunt, 
honest e  vivere,  alterum  non  laedere,  suum  cuique  tribuere! 

It  was  impossible  to  spend  a  day  in  El  Azhar  with- 
out being  struck  by  its  similarity  to  the  Universities  of 
Europe  as  they  existed  in  the  thirteenth  and  fourteenth 
centuries. 

In  both  an  extreme  simplicity  of  appliances.  Nothing 
more  than  a  few  buildings  capable  of  giving  shelter  has 
been  needed  here  or  was  needed  there :  for  a  University 
is  after  all  only  a  mass  of  persons  possessing  or  desiring 
learning,  a  concourse  of  men,  some  willing  to  teach  and 
others  eager  to  be  taught. 

In  both  a  like  simplicity  of  educational  arrangements. 
Every  graduate  is,  or  may  be  if  he  likes,  a  teacher,  and 
graduation  is  nothing  more  than  a  certificate  of  know- 
ledge qualifying  a  man  to  teach. 

In  both,  comparatively  slender  funds,  which  however 
increase  slowly  by  the  gifts  of  private  benefactors.  The 
whole  establishment  of  El  Azhar  costs  about  £14,000 
sterling  a  year,  rather  more  than  half  of  which  goes  in 
salaries  to  the  professors,  while  about  £1,600  goes  in 
prizes  and  charitable  aid  to  the  students.  Eight  thou- 
sand (roughly  speaking)  are  taught  there  at  a  cost  of 
£i  i$s.  per  student.  The  University  of  Oxford  and  its 
colleges  (taken  together)  with  about  three  thousand 
undergraduate  students  have  an  annual  revenue  of  about 
£333,000 J ;  Harvard  University  in  Massachusetts  with 

1  Of  this  sum  (which  has  been  arrived  at  after  deducting  outgoings  on  estates, 
so  that  as  respects  this  kind  of  property  it  represents  net  revenue)  £s5,°°o  is  the 
revenue  of  the  University  and  ^278,000  the  revenue  of  all  the  Colleges,  including 
fees  and  room  rents. 


656  THE  RELATIONS   OF  LAW  AND  RELIGION 

nearly  four  thousand  students  has  £235,000  (of  which 
tuition  fees  contribute  £114,000). 

In  both,  the  greatest  freedom  for  the  student.  He 
may  study  as  much  or  as  little  as  he  pleases,  may  select 
what  professor  he  pleases,  may  live  where  he  pleases, 
may  stay  as  long  as  he  pleases,  and  may  be  examined 
or  not  as  he  pleases. 

In  both,  a  narrow  circle  of  subjects  and  practically 
no  choice  of  curriculum.  El  Azhar  teaches  even  fewer 
branches  than  did  Oxford  or  Bologna  in  the  thirteenth 
century,  for  in  Musulman  countries  the  Koran  has  swal- 
lowed up  other  topics  more  than  theology,  queen  of  the 
sciences,  and  the  study  of  the  Civil  and  Canon  Laws  did 
in  Europe.  But  a  vast  range  of  matters  which  are  to-day 
taught  in  German,  in  American,  and  even  in  English 
Universities  lie  outside  both  the  Trivium  and  Quadri- 
vium  and  the  professional  faculties  as  they  stood  in  the 
Middle  Ages. 

In  both,  little  separation  between  teachers  and  pupils, 
and  a  mixture  of  students  of  all  ages,  from  boys  of 
twelve  to  men  of  fifty.  In  Oxford  there  is  a  tradition 
that  marbles  used  to  be  played  by  students  on  the  steps 
of  the  Schools.  Why  not,  when  one  sees  boys  of  twelve 
learning  to  read  the  Koran  at  El  Azhar?  Oxford  may 
well  have  been  then,  like  this  mosque  now,  a  school  for 
persons  of  all  ages. 

In  both,  a  body  of  men  liable  to  turbulence,  and  easily 
roused  by  political  passion.  A  multitude  living  together 
without  family  ties  or  regular  industrial  occupation  is 
prone  to  fanaticism ;  and  the  students  of  El  Azhar,  like 
the  Softas  at  Constantinople,  like  the  monks  of  Alexan- 
dria in  the  days  of  Cyril  and  Hypatia,  have  sometimes 
raised  tumults ;  though  these  would  be  repressed  more 
savagely  here,  should  they  displease  the  ruling  pow- 
ers, than  were  those  for  which  Paris  and  Oxford  were 
famous  in  days  when  their  scholars  were  fired  by  re- 
ligious or  political  excitement,  and  when  the  move- 
ments of  public  opinion  and  the  tendencies  we  now 


TEE  RELATIONS   OF  LAW  AND  RELIGION  657 

call  democratic  found  through  the  eager  crowd  of 
university  youth  their  most  free  and  prompt  expres- 
sion. 

Finally,  in  both,  a  kind  of  teaching  and  study  which 
tends  to  the  development  of  two  aptitudes  to  the  neglect 
of  all  others,  viz.  memory  and  dialectic  ingenuity.  The 
first  business  of  the  student  is  to  know  his  text-book, 
if  necessary  to  know  every  word  of  it,  together  with 
the  different  interpretations  every  obscure  text  may 
bear.  His  next  is  to  be  prepared  to  sustain  by  quick 
keen  argument  and  subtle  distinction  either  side  of  any 
controverted  question  which  may  be  proposed  for  dis- 
cussion. As  the  habit  of  knowing  text-books  thoroughly 
— and  the  knowledge  of  Aristotle  and  the  Corpus  Juris 
possessed  by  mediaeval  logicians  and  lawyers  was  won- 
derfully exact  and  minute — made  men  deferential  to 
authority  and  tradition,  so  the  constant  practice  in  oral 
dialectical  discussion  made  men  quick,  keen,  fertile,  and 
adroit  in  argument.  The  combination  of  brilliant  acute- 
ness  in  handling  points  not  yet  settled,  with  unquestion- 
ing acceptance  of  principles  and  maxims  determined  by 
authority,  is  characteristic  of  Muhamadan  Universities 
even  more  than  it  was  of  European  ones  in  the  Middle 
Ages,  and  tended  in  both  to  turn  men  away  from  the 
examination  of  premises  and  to  cast  the  blight  of  barren- 
ness upon  the  extraordinary  inventiveness  and  acuteness 
which  the  habit  of  casuistical  discussion  develops.  And 
the  parallel  would  probably  have  been  closer  could  it 
have  been  drawn  between  the  Musulman  Schools,  not 
as  they  are  now,  but  as  they  were  during  the  great  age 
in  Bagdad  in  Spain  and  in  Egypt,  and  the  schools  of 
Western  Europe  in  the  days  of  Abelard  or  Duns  Scotus. 
For  El  Azhar  to-day  impresses  one  as  a  University 
where  both  thought  and  teaching  are  in  a  state  of  de- 
cline, where  men  gnaw  the  dry  bones  of  dogmas  and 
rules  which  have  come  down  from  a  more  creative 
time. 

To  what  causes  shall  we  ascribe  the  striking  contrast 
42 


658  THE  RELATIONS   OF  LAW  AND  RELIGION 

between  the  later  history  of  schools  which  at  one  time 
presented  so  many  similar  features?  Why  has  Musul- 
man learning  stood  still  in  the  stage  it  reached  many 
centuries  ago,  while  Christian  learning,  developing  and 
transforming  itself,  has  continually  advanced  ?  Why  has 
El  Azhar  actually  gone  back?  Why  does  it  accomplish 
nothing  to-day  for  the  deepening,  or  widening,  or  ele- 
vating of  Musulman  thought? 

Of  racial  differences  I  say  nothing,  because  to  discuss 
these  would  carry  us  too  far  away  from  our  main  sub- 
ject. Their  importance  is  apt  to  be  overrated,  and  they 
are  often  called  in  to  save  the  trouble  of  a  more  careful 
analysis,  being  indeed  themselves  largely  due  to  his- 
torical causes,  though  causes  too  far  back  in  the  past  to 
be  capable  of  full  investigation.  Here  it  is  the  less  neces- 
sary to  discuss  them,  because  many  races  have  gone  to 
make  up  the  Musulman  world,  and  some  of  these  had 
attained  great  intellectual  distinction  before  Islam  ap- 
peared. Nor  will  I  dwell  on  the  tremendous  catastrophe 
which  overwhelmed  the  Musulman  peoples  of  Western 
Asia  in  the  twelfth,  thirteenth,  and  fourteenth  centuries, 
when  many  flourishing  seats  of  arts  and  letters  were 
overwhelmed  by  a  flood  of  barbarian  invaders,  first  the 
Seljukian  Turks,  then  the  Mongols  of  Zinghis  Khan, 
then  the  Ottoman  Turks  whose  rule  has  lain  like  a  blight 
upon  Asia  Minor,  Syria,  and  Irak  for  the  last  fourteen 
generations  of  men.  Before  the  Seljuks  and  the  Mon- 
gols came,  philosophy  and  learning,  science  and  art,  had 
in  some  favoured  spots  reached  a  development  sur- 
passing that  of  contemporary  Christian  states,  a  de- 
velopment which  in  the  schools  of  Irak  and  of  Persia 
had  wandered  far  from  orthodox  Musulman  tradi- 
tions, but  which  certainly  showed  that  Islam  is  not  in- 
compatible with  intellectual  development.  That  culture, 
however,  which  had  adorned  the  days  of  the  earlier 
Khalifs,  decayed  even  in  Spain  and  in  Barbary,  where  it 
was  not  destroyed  by  a  savage  enemy.  It  was  not 
strong  enougk  to  recover  itself  in  Syria,  Asia  Minor,  or 


THE   h'i:L .1770.YN    OF  LAW  AND  RELIGION  659 

Egypt,  and  could  neither  elevate  and  refine  the  Turk 
nor  send  up  fresh  shoots  from  the  root  of  the  tree  he 
had  cut  down.  Even  in  Persia,  though  Persia  remained 
a  national  kingdom,  preserving  its  highly  cultivated 
language  and  its  love  of  poetry,  creative  power  withered 
away.  While  therefore  giving  full  credit  to  the  Arabs, 
Syrians,  and  Persians  of  the  earlier  Musulman  centuries 
for  their  achievements,  we  are  still  confronted  by  the 
fact  that  the  soil  which  produced  that  one  harvest  has 
never  been  able  to  produce  another.  Scarcely  any 
Musulman  writer  has  for  five  hundred  years  made  any 
contribution  to  the  intellectual  wealth  of  the  world. 
Even  the  Musulman  art  we  admire  at  Agra  and  Delhi, 
at  Bijapur  and  Ahmedabad,  was  largely  the  work  of 
European  craftsmen.  The  majestic  mosques  of  Con- 
stantinople are  imitations  of  Byzantine  buildings.  Thus 
we  are  forced  back  upon  the  question  why  the  Uni- 
versities of  Islam,  with  all  that  they  represent,  have 
languished  and  become  infertile. 

Among  the  causes  to  be  assigned  we  may  place  first 
of  all  the  greater  intellectual  freedom  which  Christianity, 
even  in  its  darkest  days,  permitted.  The  Koran,  being 
taken  as  an  unchangeable  and  unerring  rule  of  life  and 
thought  in  all  departments,  has  enslaved  men's  minds. 
Even  the  divergence  of  different  lines  of  tradition  and 
the  varieties  of  interpretation  of  its  text  or  of  the  Tradi- 
tions, has  given  no  such  opening  for  a  stimulative  di- 
versity of  comment  and  speculation  as  the  Christian 
standards,  both  the  Scriptures  themselves,  the  product 
of  different  ages  and  minds,  and  the  writings  of  the 
Fathers,  secured  for  Christian  theology. 

In  the  second  place,  the  philosophy,  theology,  and  law 
of  Islam  have  been  less  affected  by  external  influences 
than  were  those  of  Christian  Europe.  Greek  literature, 
though  a  few  treatises  were  translated  and  studied  by 
some  great  thinkers,  told  with  no  such  power  upon  the 
general  movement  of  Musulman  thought  as  it  did  in 
Europe,  and  notably  in  the  fifteenth  and  sixteenth  cen- 


660  THE  RELATIONS  OF  LAW  AND  RELIGION 

turies ;  and  Greek  influence  among  Muslims,  instead  of 
growing,  seems  to  have  passed  away. 

Thirdly,  there  has  been  in  the  Musulman  world  an 
absence  of  the  fertilizing  contact  and  invigorating  con- 
flict of  different  nationalities  with  their  diverse  gifts  and 
tendencies.  Islam  is  a  tremendous  denationalizing  force, 
and  has  done  much  to  reduce  the  Eastern  world  to  a 
monotonous  uniformity.  The  Turks  seem  to  be  a  race 
intellectually  sterile,  and  like  the  peoples  of  North  Africa 
in  earlier  days,  they  did  not,  when  they  accepted  the 
religion  of  Arabia,  give  to  its  culture  any  such  new  form 
or  breathe  into  it  any  such  new  spirit  as  did  the  Teutonic 
races  when  they  embraced  the  religion  and  assimilated 
the  literature  of  the  Roman  world.  Only  the  Persians 
developed  in  Sufism  a  really  distinct  and  interesting  type 
of  thought  and  produced  a  poetry  with  a  character  of  its 
own ;  and  the  Persians,  being  Shiites,  have  been  cut  off 
from  the  main  stream  of  Musulman  development,  and 
have  themselves  for  some  centuries  past  presented  the 
symptoms  of  a  decaying  race. 

Lastly,  the  identification  of  Theology  and  Law  has 
had  a  baleful  influence  on  the  development  of  both 
branches  of  study.  Law  has  become  petrified  and  casu- 
istical. Religion  has  become  definite,  positive,  frigid, 
ceremonial.  Theology,  in  swallowing  up  law,  has  itself 
absorbed  the  qualities  of  law.  Each  has  infected  the 
other.  In  El  Azhar  theology  is  taught  as  if  it  were  law, 
a  narrow  sort  of  law,  all  authority  and  no  principle. 
Law  is  taught  as  if  it  was  theology,  an  infallible,  un- 
erring, and  therefore  unprogressive  theology.  Religious 
precepts  are  delivered  in  El  Azhar  as  matters  of  external 
behaviour  and  ceremony.  Some  of  the  duties  enjoined, 
such  as  prayer,  are  wholesome  in  themselves;  some,, 
such  as  almsgiving,  are  laudable  in  intention,  but  bene- 
ficial in  result  only  when  carried  out  with  intelligence 
and  discrimination;  some,  such  as  pilgrimage  to  Mecca, 
are  purely  arbitrary.  All,  however,  are  dealt  with  from 
the  outside:  all  become  mechanical,  and  the  precise 


THE  RELATIONS  OF  LAW  AND  RELIGION  661 

regulations  for  performing  them  quench  the  spirit  which 
ought  to  vivify  them.  The  intellect  being  thus  cramped 
and  the  soul  thus  drilled,  theology  is  dwarfed,  and  its 
proper  development  arrested.  It  is  not  suffered  to 
create,  or  to  help  in  the  creation  of,  philosophy :  and  ac- 
cordingly in  El  Azhar,  philosophy,  in  that  largest  sense 
in  which  it  is  the  mother  of  the  sciences,  because  em- 
bodying the  method  and  spirit  whence  each  draws  its 
nutriment,  finds  no  place  at  all. 

We  are  thus  brought  back  to  that  general  question 
of  the  relations  of  religion  and  law  in  the  Musulman 
world  from  which,  in  the  interest  naturally  roused  by 
the  sight  of  a  University  recalling  the  earlier  history  of 
Oxford  and  Cambridge,  I  have  been  led  to  turn  aside. 

The  identification  of  religion  and  law  rests  upon  two 
principles.  One  is  the  recognition  by  Islam  of  the  Koran 
as  a  law  divinely  revealed,  covering  the  whole  sphere  of 
man's  thought  and  action.  Being  divine  it  is  unerring 
and  unchangeable. 

The  other  is  the  promulgation  of  this  revelation 
through  a  monarch  both  temporal  and  spiritual,  Mu- 
hamad,  the  Prophet  of  God. 

Since  the  revealed  law  is  unerring,  it  cannot  be  ques- 
tioned, or  improved,  or  in  any  wise  varied.  Hence  it 
becomes  to  those  who  live  under  it  what  a  coat  of  mail 
would  be  to  a  growing  youth.  It  checks  all  freedom  of 
development  and  ultimately  arrests  growth,  the  growth 
both  of  law  and  of  religion. 

Since  the  revelation  comes  through  a  prophet  who 
is  also  a  ruler  of  men,  a  king  and  judge,  as  well  as  an 
inspired  guide  to  salvation,  it  is  conveyed  in  the  form 
of  commands.  It  is  a  body  of  positive  rules,  covering 
the  whole  of  the  Muslim's  conduct  towards  God  and 
towards  his  fellow  men. 

Three  results  follow  of  necessity. 

Religion  tends  to  become  a  body  of  stereotyped  ob- 
servances, of  duties  which  are  prescribed  in  their  de- 
tails, and  which  may  be  discharged  in  an  almost  me- 


662  THE  RELATIONS   OF  LAW  AND  RELIGION 

chanical  way.  The  Faith  is  to  be  held,  but  held  as  a  set 
of  propositions,  which  need  not  be  accompanied  by  any 
emotion  except  the  sense  of  absolute  submission  to  the 
Almighty.  Faith,  therefore,  has  not  the  same  sense  as 
it  has  in  the  New  Testament.  It  is  by  works,  not  by 
faith  (save  in  so  far  as  faith  means  the  acceptance  of 
the  truths  of  God's  existence  and  of  the  prophetic  mis- 
sion of  Muhamad)  that  a  Muslim  is  saved.  There  is  little 
room  for  the  opposition  of  the  letter  and  the  spirit,  of 
the  law  and  grace,  for  religion  has  been  legalized  and 
literalized.  Nevertheless  there  is  in  many  Muslims  a 
vein  of  earnest  piety,  and  a  piety  which  really  affects 
conduct.  Those  Westerners  who  have  praised  Islam  have 
often  admired  it  for  the  wrong  things.  They  admire  the 
fierce  militant  spirit,  and  the  haughty  sense  of  superiority 
it  fosters.  They  undervalue  the  stringency  with  which 
it  enforces  certain  moral  duties,  and  the  genuine,  if 
somewhat  narrow  piety  which  it  forms  in  the  better 
characters. 

Law  becomes  a  set  of  dry  definite  rules  instead  of  a 
living  organism.  It  is  a  mass  of  enactments  dictated  by 
God  or  His  mouthpiece,  instead  of  a  group  of  principles, 
each  of  which  possesses  the  power  of  growth  and  varia- 
tion. The  two  motive  powers,  whether  one  calls  them 
springs  of  progress  or  standards  of  excellence,  which 
guided  the  development  and  made  the  greatness  of 
Roman  Law,  the  idea  of  the  Law  of  Nature  and  the  idea 
of  Utility,  as  an  index  to  the  law  of  nature,  are  absent. 
There  is  no  room  for  them  where  the  divine  revelation 
has  once  for  all  been  delivered.  Reason  gets  no  fair 
chance,  because  Authority  towers  over  her.  Forbidden 
to  examine  the  immutable  rules,  she  is  reduced  to  weave 
a  web  of  casuistry  round  their  application.  It  is  only 
through  the  interpretation  of  the  sacred  text  and  of  the 
traditions  that  the  Law  can  be  amended  or  adapted  to 
the  needs  of  a  changing  world:  and  one  reason  why 
the  Musulman  world  changes  so  little  is  to  be  found 
in  the  uncha-ngeability  of  its  Sacred  Law.  The  difficul- 


THE  RELATIONS  OF  LAW  AND  RELIGION  663 

ties  which  European  Powers  have  found  in  their  efforts 
— efforts  which  to  be  sure  have  been  neither  zealous  nor 
persistent — to  obtain  reforms  in  the  Ottoman  Empire, 
are  largely  due  to  the  fact  that  the  Sacred  Law  has  a 
higher  claim  on  Muslim  obedience  than  any  civil  enact- 
ment proceeding  from  the  secular  monarch. 

Such  a  system  will  obviously  give  little  scope  for  the 
development  of  a  legal  profession.  Advocacy  is  un- 
known in  Musulman  countries.  The  parties  conduct 
their  respective  cases  before  the  Kadi l.  They  may  pro- 
duce to  him  opinions  signed  by  doctors  of  the  law  in 
favour  of  their  respective  contentions,  but  the  only 
notion  the  Musulman  (i.e.  the  non-Occidentalized  Musul- 
man) can  form  of  an  advocate  in  our  sense  of  the  word 
is  a  paid,  and  presumably  false,  witness. 

The  community  suffers  politically.  The  duty  of  un- 
questioning obedience,  and  the  habit  of  blind  submission 
to  authority,  dominate  and  pervade  the  Musulman  mind 
so  completely  that  its  only  idea  of  government  is  des- 
potism. Nothing  approaching  to  a  free  ruling  assembly, 
either  primary  or  representative,  has  sprung  up  in  a 
Musulman  country;  and  it  would  need  almost  an  intel- 
lectual revolution  to  make  such  a  system  acceptable  or 
workable  there  2. 

Finally,  it  is  a  consequence  of  the  system  described 
that  there  is  an  absolute  identity  of  State  and  Church. 
The  Church  is  the  State,  but  it  is  a  highly  secular  State, 
wanting  many  of  the  attributes  we  associate  with  the 
Church.  It  commands  as  a  matter  of  course  the  physi- 
cal force  of  the  State,  and  needs  no  special  anathemas 
of  its  own.  Its  priests,  so  far  as  it  can  be  said  to  have 
priests,  are  lawyers,  and  its  lawyers  are  priests,  and  its 
students  graduate  from  the  University  into  what  is  one 

1  Whether  this  system  tends  to  facilitate  the  bribing  of  judges,  almost  universal 
in  countries  ruled  by  a  Musulman  monarch,  quaere. 

2  I  do  not  mean  to  suggest  that  races  like  those  of  Arabia,  Syria,  and  Persia,  may 
not  under  the  contact  and  stimulus  of  European  literature  and  thought  again  de- 
velop an  intellectual  life  of  their  own.    But  it  can  hardly  be  a  life  on  the  orthodox 
lines  of  Islam.    The  first  thing  to  be  hoped  for  is  that  Syria  and  Asia  Minor  may 
get  rid  of  the  Turk,  who  has  never  shown  himself  fit  for  anything  but  fighting. 


664  THE  RELATIONS  OF  LAW  AND  RELIGION 

and  the  same  profession.  As  the  Church  is  pre-emi- 
nently a  militant  Church,  born  and  nursed  in  war,  its 
head,  the  Khalif,  is  also  of  right  supreme  temporal  sove- 
reign. The  Pope  is  Emperor,  and  the  Emperor  is  Pope. 
They  are  not  two  offices  which  one  man  may  fill,  as  the 
Emperor  Maximilian  wished  to  be  chosen  Pope.  They 
are  one  office.  And  accordingly  when  any  spiritual  pre- 
tender arises,  claiming  to  be  a  prophet  of  God,  he  be- 
comes forthwith,  ex  necessitate  terminorum,  a  temporal 
ruler,  like  the  Mahdi  of  the  Sudan  at  the  present  moment 
(1888).  The  only  exception  to  this  absolute  identifica- 
tion of  Church  and  State  (which  is  of  course  a  fact  mak- 
ing most  powerfully  for  despotism)  is  to  be  found  in 
the  incompetency  of  the  Khalif  to  pronounce  upon  the 
interpretation  of  the  sacred  law.  This  attribute  of  the 
Pope  is  lacking.  The  spiritual  head  of  the  Musulman 
world,  for  this  purpose,  and  therewith  also  its  legal  head, 
is  a  lawyer,  the  Sheik-ul-Islam,  to  whom  it  belongs  to 
deliver  authoritative  interpretations  of  questions  arising 
on  the  law,  i.e.  on  the  Koran  and  the  Traditions.  Such 
an  opinion  is  called  a  Fetwa.  Against  it  even  a  Khalif 
cannot  act  without  forfeiting  his  right  to  the  obedience 
of  his  subjects,  so  when  any  Sovereign  claiming  to  be 
Khalif  wishes  to  do  something  of  questionable  legality, 
he  takes  care  to  procure  beforehand  from  the  Sheik- 
ul-Islam  a  fetwa  covering  the  case.  Being  in  the  Khalif  s 
power,  the  Sheik  rarely  hesitates,  yet  he  is  in  a  measure 
amenable  to  the  opinion  of  his  own  profession,  and  might 
be  reluctant  to  venture  too  far.  So  too  the  Khalif, 
though  he  might  depose  a  recalcitrant  Sheik  (were  such 
a  one  ever  to  be  found),  and  replace  him  by  a  more  pliant 
instrument,  must  also  have  regard  to  public  sentiment, 
a  power  always  formidable  in  the  sphere  of  religion,  and 
the  more  formidable  the  more  the  mind  of  a  people  is 
removed  from  the  influence  of  habits  properly  political, 
and  is  left  to  be  coloured  by  religious  feeling. 

Islam  these  owes  features  of  its  religion,  its  law  and 
its  politics  to  its  source  in  a  divine  revelation  complete, 


THE  RELATH>\x   or   LAW  A\D  RELIGION  665 

final,  and  peremptory.  But  it  is  not  the  only  religion 
that  has  a  like  source.  The  Musulmans  class  three  re- 
ligious communities  as  Peoples  of  the  Book.  The  other 
two  are  the  Jews  and  the  Christians.  Of  the  Jews  I 
have  spoken  already.  Their  system,  as  it  stood  at  the 
time  of  our  Lord's  appearing,  resembled  in  many  points 
that  which  Islam  subsequently  created,  though  there  was 
never  in  it  any  complete  identification  of  the  spiritual 
and  the  secular  power,  because  it  had  a  regular  heredi- 
tary priesthood,  which,  though  for  a  time  acting  as 
leader  and  ruler,  had  no  permanent  coercive  secular  au- 
thority. The  Jewish  system  had,  moreover,  in  the  words 
of  the  Prophets  and  in  the  Psalms  influences  comple- 
mentary to  the  Mosaic  law  and  the  Traditions,  and  cor- 
rective of  any  evils  which  might  spring  from  undue 
respect  for  the  latter.  Moreover,  the  historical  develop- 
ment of  that  system  was  checked  by  external  conquering 
forces,  which  ultimately  deprived  it  of  the  chance  of  be- 
coming a  temporal  power. 

What,  however,  shall  we  say  of  Christianity?  Why 
has  the  course  of  its  history  been  so  unlike  that  of  Islam  ? 
Why  has  its  origin  in  a  divine  revelation  not  impressed 
upon  it  features  like  those  we  have  been  considering? 
I  must  be  content  to  indicate,  without  stopping  to  de- 
scribe, a  few,  and  only  a  few,  of  the  more  salient  causes. 

The  Christian  revelation  as  contained  in  the  Old  and 
New  Testaments  is  not,  except  as  regards  sections  of 
the  Mosaic  law,  a  series  of  commands.  It  is  partly  a 
record  of  events,  partly  a  body  of  poems,  partly  a  series 
of  addresses,  discourses,  and  reflections,  speculative, 
hortatory,  or  minatory,  and  mostly  cast  in  a  poetic 
form,  and  partly  a  collection  of  precepts.  These  pre- 
cepts are  all,  or  nearly  all,  primarily  moral  precepts, 
which  are  addressed  to  the  heart  and  conscience,  and 
they  proceed  from  teachers  who  had  no  compulsive 
power,  so  that  such  authority  as  the  precepts  possess 
is  due  only  to  their  intrinsic  worth,  or  to  the  belief  that 
they  express  the  Divine  will.  Especially  in  the  case  of 


666  TEE  RELATIONS   OF  LAW  AND  RELIGION 

the  New  Testament  (though  the  same  thing  is  essen- 
tially true  of  the  Prophets)  the  precepts  are  directed  not 
so  much  to  the  enjoining  of  specific  right  acts  fit  to  be 
done  as  to  the  creation  of  a  spirit  and  temper  out  of 
which  right  acts  will  naturally  flow.  Had  the  Penta- 
teuchal  law  been  taken  over  bodily  into  Christianity, 
things  might  have  been  different,  though  the  other  ele- 
ments of  the  revelation  would  have  kept  its  influence  in 
check.  But  fortunately  among  the  forces  that  were  at 
work  in  the  primitive  Church,  there  were  some  strongly 
anti-Judaic,  so  any  evil  that  might  have  been  feared 
from  that  quarter  was  averted. 

It  is  impossible  to  make  a  code  out  of  the  New  Testa- 
ment. The  largest  collection  of  positive  precepts,  de- 
livered with  the  most  commanding  authority,  is  that 
contained  in  the  fifth,  sixth,  and  seventh  chapters  of 
St.  Matthew's  Gospel.  But  these  are  so  far  from  being 
laws  in  the  ordinary  sense  of  the  word  that  no  body  of 
Christians  has  ever  yet  come  near  to  obeying  them. 
Indeed  hardly  any  body  of  Christians  has  ever  seriously 
tried  to  do  so.  They  are  obviously  addressed  to  the 
heart  and  intended  not  so  much  to  prescribe  acts  as  to 
implant  principles  of  action. 

Similarly  the  Epistles  are  either  moral  exhortations 
and  expositions  of  duty  or  else  metaphysical  discussions. 
Neither  out  of  them  can  any  code  be  framed  which  a 
lawgiver  could  attempt  to  enforce.  Even  on  the  exter- 
nal observances  of  religion  and  constitution  of  the 
Church,  so  little  is  said,  and  said  in  such  general  terms, 
that  Christians  have  been  occupied  during  the  last  four 
centuries  in  debating  what  it  was  that  the  authors  of  the 
Epistles  meant  to  enjoin. 

After  the  canonical  Scriptures  come  the  Fathers  of 
the  Church,  whose  writings  were  at  one  time  universally, 
and  by  a  large  part  of  Christendom  still  are,  deemed  to 
enjoy  a  high  measure  of  authority.  They  may  be  com- 
pared to  those  early  Musulman  writers  from  whom  the 
traditions  of  Islam  descend,  or  to  the  early  recorders 


THE  RELATIONS   OF  LAW  AND  RELIGION  667 

of  and  commentators  on  those  traditions.  The  Fathers, 
however,  did  not  generally  affect  to  lay  down  positive 
rules,  but  were  occupied  with  exhortation  and  discus- 
sion. Neither  out  of  their  treatises  could  a  body  of  law 
be  framed,  nor  did  any  one  think  of  doing  this  till  long 
after  their  day.  Even  then  it  was  as  guides  in  doctrine 
and  discipline,  not  as  the  source  of  legal  rules,  that  they 
were  usually  cited. 

Christianity  began  its  work  not  only  apart  from  all 
the  organs  of  secular  power,  but  in  the  hope  of  creating 
— indeed  for  a  time,  in  the  confidence  that  it  would  create 
— a  new  society  wherein  brotherly  love  should  replace 
law. 

Before  long  it  incurred,  as  a  secret  society,  the  sus- 
picion and  hatred  of  the  secular  power,  and  had  indeed 
so  much  to  suffer  that  one  might  have  expected  its  pro- 
fessors to  conceive  a  lasting  distrust  of  that  power  in  its 
dealings  with  religion.  This,  however,  did  not  happen. 
So  soon  as  the  secular  monarch  placed  his  authority  at 
the  disposal  of  the  Church,  by  this  time  organized  as 
a  well-knit  hierarchy,  the  Church  welcomed  the  alliance, 
and  began  ere  long  to  invoke  the  help  of  carnal  weapons. 
This  was  the  time  when  she  might  in  her  growing 
strength  have  been  tempted  to  impose  her  precepts 
upon  the  community  in  the  form  of  binding  rules.  But 
the  field  was  already  occupied.  She  was  confronted 
and  overawed  by  the  majestic  fabric  of  the  Roman  law. 
In  the  East  that  law  continued  to  be  upheld  and  applied 
by  the  civil  authorities.  In  the  West  it  suffered  severe 
shocks  from  the  immigration  of  the  barbarian  tribes ; 
but  as  it  was  associated  with  Christian  society,  the 
Church  clung  to  it,  and  was  in  no  condition  for  some 
centuries  to  try  to  emulate  or  supersede  it.  When  the 
time  of  her  dominance  came  in  the  eleventh,  twelfth,  and 
thirteenth  centuries,  she  did  indeed  build  up  a  parallel 
jurisdiction  of  her  own,  with  courts  into  which  laymen  as 
well  as  clerks  were  summoned,  and  she  created  for  these 
courts  that  mass  of  decrees,  almost  rivalling  the  Civil 


668  THE  RELATIONS  OF  LAW  AND  RELIGION 

Law  in  bulk  and  complexity,  which  we  call  the  Canon 
Law.  In  the  canon  law  there  may  seem  to  be  an  ana- 
logue to  the  sacred  law  of  Islam.  But  the  resemblances 
are  fewer  than  the  differences.  The  canon  law  never  had 
any  chance  of  ousting  the  civil  law,  which  had  already 
entered  on  a  period  of  brilliant  development  and  potent 
influence  at  the  time  when  the  decrees  of  earlier  Coun- 
cils and  Popes  were  beginning  to  be  formed  into  a 
systematic  digest  of  rules ;  and  temporal  rulers  were 
generally  able  to  hold  their  own  against  Popes  and  arch- 
bishops. Moreover  the  canon  law,  being  partly  based 
on  or  modelled  after  the  Roman  civil  law,  escaped  some 
of  the  faults  that  might  have  crept  into  it  had  it  been 
erected  on  a  purely  theological  foundation.  The  Church 
was  already  so  secularized  that  its  law  was  largely  secu- 
lar in  spirit,  and  ecclesiastical  jurists  were  at  least  as 
much  jurists  as  they  were  churchmen.  The  question 
propounded  in  the  twelfth  century,  whether  an  arch- 
deacon could  obtain  salvation,  shows  that  the  church- 
man who  betook  himself  to  legal  business  was  deemed 
to  be  quitting  the  sphere  of  piety.  Thus  law,  canon  as 
well  as  civil  law,  remained  law,  and  religion  remained 
religion.  The  canon  law  is  the  law  of  the  Church  as  an 
organized  and  property-holding  society  or  group  of  so- 
cieties. It  is  the  law  for  dealing  with  spiritual  offences. 
It  is  the  law  which  regulates  certain  civil  relations  which 
the  Church  claims  to  deal  with  because  they  have  a  re- 
ligious side.  But  there  is  no  general  absorption  of  the 
civil  by  the  ecclesiastical,  no  general  lowering  of  the 
spiritual  to  the  level  of  the  positive,  the  external,  and  the 
ceremonial.  In  the  fifteenth  and  sixteenth  centuries  the 
New  Learning  and  the  great  ecclesiastical  schism  re- 
moved the  danger,  if  danger  there  ever  was,  that  there 
should  descend  upon  Christianity  that  glacial  period 
which  has  so  long  held  Islam  in  its  gripe. 


XIV 

METHODS   OF   LAW-MAKING   IN 
ROME  AND   IN   ENGLAND 

INTRODUCTORY. 

THE  relations  borne  by  the  growth  and  improvement 
of  the  law  of  a  country  to  that  of  the  constitutional  de- 
velopment of  that  country  as  a  State  are  instructive  in 
many  aspects — instructive  where  the  lines  of  progress 
run  parallel  to  one  another,  instructive  also  where  they 
diverge.  I  propose  in  the  following  pages  to  consider 
them  as  they  concern  the  organs  and  the  methods  of 
legislation  at  Rome  and  in  England.  The  political  side 
of  this  subject  is  a  very  large  one,  indeed  too  large  to  be 
discussed  here,  for  it  would  involve  a  running  com- 
mentary upon  the  general  history  of  these  two  States. 
I  will  only  remark  that  the  inquiry  would  show  us, 
among  other  things,  the  fact  that  the  progress  of  Rome 
from  a  republic,  half  oligarchic,  half  democratic,  to  a 
despotism,  did  not  prevent  the  phenomena  which  mark 
the  evolution  of  its  legislation  from  bearing  many  re- 
semblances to  the  evolution  of  legislation  in  England, 
where  progress  has  been  exactly  the  reverse,  viz.  from 
a  strong  (though  indeed  not  absolute)  monarchy  to  what 
is  virtually  a  republic  half  democratic,  half  plutocratic. 
The  present  inquiry  must  be  confined  to  the  legal  side 
of  the  matter,  viz.  to  the  Organs  and  the  Methods  of 
Legislation  regarded  not  so  much  as  the  results  of  poli- 


670  ROMAN  AND  ENGLISH  LEGISLATION 

tical  causes,  but  rather  as  the  sources  whence  law  springs 
and  the  forces  whereby  it  is  moulded. 

The  working  of  these  Organs  and  Methods  may  be 
studied,  and  their  excellence  tested,  with  regard  to  both 
the  aspects  of  law  itself,  its  Substance  and  its  Form. 
The  merit  of  a  system  of  Law  in  point  of  Substance  is 
that  it  be  righteous  and  reasonable,  satisfying  the  moral 
sentiments  of  mankind,  giving  due  scope  to  their  ac- 
tivity, securing  public  order,  and  facilitating  social  pro- 
gress. In  point  of  Form,  the  merit  of  Law  consists  in 
brevity,  simplicity,  intelligibility,  and  certainty,  so  that 
its  provisions  may  be  quickly  found,  easily  compre- 
hended, and  promptly  applied.  Both  sets  of  merits, 
those  of  Substance  and  those  of  Form,  will  depend  partly 
on  the  nature  of  the  persons  or  bodies  from  whom  the 
Law  proceeds,  that  is  the  Organs  of  Legislation,  partly 
on  the  Methods  employed  by  those  persons  or  bodies. 
But  the  merits  of  Substance  open  up  a  field  of  inquiry 
so  wide  that  it  will  be  better  to  direct  our  present  cri- 
ticism of  Organs  and  Methods  chiefly  to  those  excel- 
lences or  defects  of  the  law  which  belong  to  its  form. 
I  propose  to  consider  these  as  they  worked  in  Rome, 
and  have  worked  down  to  and  in  our  own  time  in  Eng- 
land, assuming  the  broad  outlines  of  the  legal  history 
of  both  States  to  be  already  known  to  the  reader,  and 
dwelling  on  those  points  in  which  a  comparison  of  Rome 
and  England  seems  most  likely  to  be  profitable. 

I.    LAW-MAKING  AUTHORITIES  IN  GENERAL. 

First  let  us  see  what,  speaking  generally,  are  the  au- 
thorities in  a  community  that  make  the  Law,  and  How 
— that  is  to  say,  by  what  modes  or  through  what  organs, 
they  make  it. 

Broadly  speaking,  there  are  in  every  community  two 
authorities  which  can  make  Law: — the  State,  i.e.  the 
ruling  and  directing  power,  whatever  it  may  be,  in  which 
the  government  of  the  Community  resides,  and  the  Peo- 


.i.v/>  i:\aLisii  LB&IBLATI03  671 

pie,  that  is,  the  whole  body  of  the  community,  regarded 
not  as  organized  in  a  State,  but  as  being  merely  so  many 
persons  who  have  commercial  and  social  relations  with 
one  another.  There  is,  to  be  sure,  a  school  of  juridical 
writers  which  does  not  admit  that  the  people  do  or  can 
thus  make  Law,  insisting  that  Custom  is  not  Law  till 
the  State  has  in  some  way  expressly  recognized  it  as 
such.  But  this  view  springs  from  a  theory  so  incom- 
patible with  the  facts  in  their  natural  sense,  that  a  false 
and  unreal  colour  must  be  put  upon  those  facts  in  order 
to  make  them  fall  in  with  it.  It  is  unnecessary  to  pur- 
sue a  question  which  is  apt  to  become  merely  a  verbal 
one.  Let  it  suffice  to  say  that  Law  cannot  be  always 
and  everywhere  the  creation  of  the  State,  because  in- 
stances can  be  adduced  where  Law  existed  in  a  country 
before  there  was  any  State ;  and  because  the  ancient 
doctrine,  both  of  the  Romans  and  of  our  own  fore- 
fathers— a  doctrine  never,  till  recently,  disputed — held 
the  contrary.  A  great  Roman  jurist  says,  with  that 
practical  directness  which  characterizes  his  class, '  Those 
rules,  which  the  people  without  any  writing  has  ap- 
proved, bind  all  persons,  for  what  difference  does  it 
make  whether  the  people  declare  their  Will  by  their 
votes  or  by  things  and  acts  *  ? '  This  is  the  universal 
view  of  the  Romans,  and  of  those  peoples  among  whom 
the  Roman  law,  in  its  modern  forms,  still  prevails.  And 
such  has  been  also  the  theory  of  the  English  law  from 
the  earliest  times. 

Now  the  State  has  two  instruments  or  organs  by 
which  it  may  legislate.  One  is  the  ruling  Person  or 
Body,  in  whom  the  constitution  expressly  vests  legis- 
lative power.  The  other  is  the  official  (or  officials), 
whether  purely  judicial,  or  partly  judicial  and  partly 
executive,  to  whom  the  administration  of  the  law  is  com- 
mitted, and  whom  we  call  the  Magistrate.  This  dis- 
tinction does  not  refer  to  the  instances  in  which  legis- 
lative authority  is,  by  an  act  of  the  Governing  Power, 

1  Julian  in  Dig,  i.  3.  32. 


672  ROMAN  AND  ENGLISH  LEGISLATION 

specially  delegated  to  some  magisterial  person  or  body. 
Those  instances  are  really  to  be  deemed  cases  of  mediate 
or  indirect  legislation  by  the  supreme  Government  (like 
the  power  given  by  statute  to  a  railway  company  to 
make  by-laws).  The  position  of  the  Magistrate  is  dif- 
ferent, because  judicial  administration,  and  not  legisla- 
tion in  the  proper  sense,  is  the  work  he  has  been  set 
to  do. 

Similarly  the  People  have  two  modes  of  making  Law. 
In  the  one  they  act  directly  by  observing  certain  usages 
till  these  grow  so  constant,  definite,  and  certain  that 
everybody  counts  upon  them,  assumes  their  existence, 
and  feels  sure  that  they  will  be  recognized  and  enforced. 
In  the  other  they  act  indirectly  through  persons  who 
have  devoted  themselves  to  legal  study,  and  who  set 
forth,  either  in  writing  or,  in  earlier  times,  by  oral  dis- 
course, certain  doctrines  or  rules  which  the  community 
accepts  on  the  authority  of  these  specially  qualified  stu- 
dents and  teachers.  Such  men  have  not  necessarily 
either  any  public  position  or  any  direct  commission  from 
the  State.  Their  views  may  rest  on  nothing  but  their 
own  reputation  for  skill  and  learning.  They  do  not  pur- 
port to  make  law,  but  only  to  state  what  the  law  is,  and 
to  explain  it;  but  they  represent  the  finer  and  more 
highly  trained  intellect  of  the  community  at  work  upon 
legal  subjects,  just  as  its  common  and  everyday  under- 
standing, moved  by  its  sense  of  practical  convenience, 
is  at  work  in  building  up  usages.  So  the  maxims  and 
rules  these  experts  produce  come  to  be,  in  course  of 
time,  recognized  as  being  true  law,  that  is  to  say,  as 
binding  on  all  citizens,  and  applicable  to  the  decision  of 
disputed  questions. 

Taking  then  these  four  Organs  or  Sources,  we  find 
that  one  Source — the  People,  as  makers  of  Customary 
Law — is  so  vague  and  indeterminate  that  one  can  say 
little  about  it  as  an  Organ,  though  the  process  by  which 
Custom  makes  its  way  and  is  felt  to  be  binding  is  a  curi- 
ous process,  well  deserving  examination.  Two  remarks 


ROMAN  AND  ENGLISH  LEGISLATION  673 

may  however  be  made  on  it.  The  first  is  this,  that  it  is 
essential  to  the  validity  of  a  rule  claimed  to  have  been 
made  by  Usage  that  it  shall  possess  a  certain  extension 
in  Time  and  a  certain  extension  in  Space.  It  must  have 
prevailed  and  been  observed  for  so  long  a  period  that  no 
one  can  deny  its  existence.  It  must  have  prevailed  over 
so  wide  an  area,  that  is  to  say,  have  been  used  by  so 
many  persons,  that  it  cannot  be  alleged  to  be  a  merely 
local  usage,  unknown  outside  the  locality,  and  therefore 
not  approved  by  the  tacit  consent  of  the  community  at 
large.  (The  size  of  the  area  is  of  course  in  each  case 
proportioned  to  the  size  of  the  whole  community.  A 
custom  observed  by  a  population  of  a  few  thousand  peo- 
ple in  a  canton  of  Switzerland  may  make  the  custom 
law  for  the  canton,  though  observance  by  a  similar 
number  would  not  make  a  similar  custom  law  for  a  large 
country  like  Bavaria.)  The  other  remark  is  that  some- 
times the  observance  of  a  custom  by  a  particular  class 
of  the  community,  as  for  instance  by  agriculturists  or 
merchants,  may  suffice  to  establish  the  rule  for  the  com- 
munity at  large1.  This  happens  where  the  custom  is 
by  its  nature  such  that  only  agriculturists  or  merchants 
(as  the  case  may  be)  would  need  to  have  a  custom  on 
the  matter  at  all.  Universality  of  practice  by  them  is 
then  sufficient  to  make  the  custom  one  valid  for  the 
whole  community,  which  may  be  taken  to  have  tacitly 
approved  it.  Sometimes,  however,  the  usage  of  a  par- 
ticular class  is  deemed  to  become  law  by  its  being  im- 
ported as  an  implied  condition  into  legal  transactions, 
especially  contracts,  entered  into  by  members  of  that 
class ;  and  this  view  has  been  frequently  taken  by  our 
English  Courts  of  mercantile  usages,  which  they  have 
in  the  first  instance  enforced  rather  as  unexpressed  ele- 
ments in  a  contract  than  as  parts  of  the  general  law. 
It  need  hardly  be  added  that  the  fact  that  the  meaning 
and  extent  of  a  rule  of  Customary  Law  are  often  uncer- 

1  The  '  Ulster  Custom '  Is  an  interesting  instance,  but  it  never  quite  got  the 
length  of  becoming  law. 

43 


674  ROMAN  AND  ENGLISH  LEGISLATION 

tain,  and  give  rise  to  judicial  controversy,  does  not  pre- 
vent the  rule  itself  from  being  valid  previous  to  its 
determination  in  such  controversy,  for  this  is  exactly 
analogous  to  a  disputed  question  regarding  the  inter- 
pretation of  a  statute.  Though  the  meaning  of  a  sta- 
tute may  have  been  doubtful  until  determined  by  the 
Courts,  the  statute  was  operative  from  the  first,  and  is 
rightly  applied  to  ascertain  the  validity  of  rights  which 
accrued  before  its  meaning  was  determined. 

We  have  thus  to  examine  three  Sources  of  Law — 
the  Governing  Person  or  Body,  the  Magistrate,  and 
the  Jurists  or  Legal  Profession.  These  are  the  three 
recognized  and  permanent  legislative  organs  of  a  com- 
munity. Every  mode  of  creating  law  discoverable  in  any 
organized  community  may  be  reduced  to  one  of  these, 
and  in  most  civilized  communities  all  of  these  may  be 
found  co-existent.  Sometimes,  however,  one  or  other 
is  either  absent  or  is  present  in  a  quite  rudimentary 
condition.  In  the  East,  as  for  instance  in  such  coun- 
tries as  Turkey  or  Persia,  there  is  little  that  can  be  called 
general  legislation.  Hatts  are  no  doubt  occasionally 
promulgated  by  the  Sultan,  though  they  are  sometimes 
not  meant  to  be  observed,  and  are  frequently  not  in  fact 
observed.  So  far  as  new  law  is  made,  it  is  made  by  the 
learned  men  who  study  and  interpret  the  Koran  and  the 
vast  mass  of  tradition  which  has  grown  up  round  the 
Koran.  The  existing  body  of  Musulman  law  has  been 
built  up  by  these  doctors  of  law  during  the  last  twelve 
centuries,  but  chiefly  in  the  eighth  and  ninth  centuries 
of  our  era :  and  a  vast  body  it  is.  The  Kadi  or  judge  is 
himself  a  lawyer,  and  he  might  mould  the  system  by  his 
decisions,  but  decisions  are  not  reported,  and  the  au- 
thority of  a  Kadi  is  deemed  lower  than  that  of  one  of  the 
more  learned  Muftis  or  doctors  of  the  law.  On  the  other 
hand  there  are  countries,  such  as  Russia  for  instance, 
where  the  direct  promulgation  of  his  will  by  the  Sove- 
reign is  the  only  recognized  form  of  legislation,  the 
decisions  of  judges  and  the  opinions  of  legal  writers  en- 


ROMAN  AND  ENGLISH  LEGISLATION  675 

joying  a  much  lower  authority.  In  other  countries,  as  in 
Germany,  legal  writers  are  numerous  and  influential,  but 
the  magistrates,  their  decisions  having  been  but  little 
reported,  have,  till  our  own  time,  held  for  the  most  part 
a  subordinate  place,  and  played  a  comparatively  small 
part  in  the  development  of  law.  This  was  at  one  time 
the  case  in  France  also,  where  cases  decided  by  the 
higher  courts  of  law  used  to  stand  little,  if  at  all,  above 
treatises  composed  by  legal  writers  of  established  repu- 
tation. Nowadays,  however,  cases  are  more  fully  re- 
ported, and  an  authority  is  accorded  to  decisions  scarcely 
lower  than  that  which  they  have  long  enjoyed  in  England 
and  America. 

At  Rome,  and  also  in  England,  all  these  three  main 
Sources  or  Organs  have  existed  in  full  force  and  effi- 
ciency, though  not  in  equal  efficiency  at  different  periods 
in  the  history  of  either  State.  At  Rome,  as  in  England, 
we  begin  with  customary  law.  The  customary  law  of 
the  Quirites  is  known  to  and  administered  by  a  small 
privileged  class;  and  so  far  as  there  is  any  legislation 
at  all,  it  is  the  work  of  members  of  this  class  who  carry 
in  their  minds  and  expound  and  insensibly  amplify  the 
sacred  traditional  ordinances.  Then  direct  legislation  by 
the  people  in  their  assemblies,  and  afterwards  (though 
in  its  germ  perhaps  almost  concurrently)  the  law-making 
action  of  the  magistrate  begin  to  appear.  They  go  on 
hand-in-hand  for  many  centuries,  seconded  by  the  never 
intermitted  labours  of  the  jurists,  until  at  last  the  magi- 
strate's work  is  over,  the  jurists  have  lost  their  impulse 
or  their  skill,  and  the  direct  activity  of  the  Sovereign 
(who  is  by  this  time  a  monarch)  becomes  the  chief  sur- 
viving fountain  of  law.  I  propose  to  take  these  three 
sources  and  compare  the  way  in  which  they  acted  in  the 
Roman  city  and  Empire  with  their  action  and  develop- 
ment— in  many  respects  parallel,  in  a  few  respects  con- 
trasted— in  England,  whose  law  has  now  spread  over  a 
large  part  of  the  British  Empire. 


676  ROMAN  AND  ENGLISH  LEGISLATION 


II.    JURISTS  AS  MAKERS  OF  LAW. 

Let  us  begin  with  the  Jurists,  since  they  are  the  first 
repositories  and  interpreters  of  those  customs  out  of 
which  law  grew.  One  may  distinguish  three  stages  in 
their  attributes  and  their  action  at  Rome.  In  the  first 
stage,  during  the  days  before  the  enactment  of  the 
Twelve  Tables,  and  even  after  that  date  down  to  the 
third  century,  B.C.,  they  were  a  small  body  of  men,  all 
of  them  patricians,  and  some  of  them  priests,  retaining 
in  their  memory  and  transmitting  to  their  disciples  a 
number  of  rules  and  maxims,  often  expressed  in  some 
carefully  phrased  and  scrupulously  guarded  form  of 
words,  such  as  the  lex  horrendi  carminis,  which .  Livy 
quotes  in  his  account  of  the  trial  of  Horatius  for  killing 
his  sister  1.  An  important  place  among  these  rulers  was 
held  by  the  formulas  which  it  was  necessary  to  use  in 
actions  or  other  legal  proceedings,  the  slightest  varia- 
tion from  the  established  phraseology  of  which  would 
be  a  fatal  error.  Such  knowledge,  with  the  connected 
knowledge  of  the  days  on  which  ancient  superstition 
forbade  or  permitted  legal  proceedings  to  be  taken,  was 
in  these  early  times  strictly  reserved  by  its  possessors 
to  their  own  class,  as  a  sacred  deposit  of  political  as  well 
as  religious  importance. 

In  the  following  period,  which  may  be  said  to  extend 
till  the  end  of  the  free  Republic,  these  restrictions  va- 
nished. The  progress  of  the  plebeians  in  political  power 
as  well  as  in  wealth  made  it  impossible  to  exclude  them 
from  the  possession  of  legal  lore.  Some  plebeians  be- 
came no  less  distinguished  as  sages  of  the  law  than 
patricians  had  been ;  indeed  Tiberius  Coruncanius,  the 
first  plebeian  chief  pontiff,  is  occasionally  described  as 
the  founder  of  the  later  school  of  scientific  lawyers. 
He  is  said  to  have  been  the  first  person  who  offered  him- 
self to  the  public  as  willing  to  advise  on  legal  questions. 

1  Book  i.  chap.  26. 


A'o.J/.l.Y  AND   ENOUBB    LEGISLATION  077 

The  profession  attracted  many  able  and  ambitious  men, 
because  it  was  one  of  the  three  recognized  avenues  to 
high  office,  the  alternative  to  arms  and  to  political  ora- 
tory. One  may  fairly  call  it  a  profession  in  this  sense, 
that  those  who  adopted  it  made  it  the  main  business 
of  their  life,  and  by  it  won  their  way  to  fame  and  influ- 
ence. But  it  was  not  such  a  profession  as  the  bar  is  in 
modern  countries,  not  a  gainful  profession  whereby  a 
fortune  could  be  amassed,  not  a  close  profession  into 
which  entrance  is  granted  only  upon  definite  terms  and 
subject  to  definite  responsibilities.  Any  man  who  liked 
might  declare  himself  ready  to  give  legal  advice  or  settle 
legal  documents.  He  had  no  examination  to  pass,  no 
fees  to  pay,  no  dinners  to  eat.  He  acquired  no  right 
of  exclusive  audience  of  the  Courts ;  he  became  amena- 
ble to  no  jurisdiction  of  his  compeers  or  of  any  con- 
stituted authority.  The  absence  of  these  things  did  not, 
however,  prevent  the  Roman  lawyers  from  having  a 
good  deal  of  what  might  be  called  professional  feeling, 
a  high  sense  of  the  dignity  of  their  calling,  and  a  warm 
attachment  to  the  old  forms  and  maxims  of  the  law. 
These  Republican  jurists  composed  treatises,  only  a  few 
scattered  extracts  from  which  have  come  down  to  us, 
and  gave  oral  teaching  to  the  disciples  who  surrounded 
them  while  they  advised  their  clients,  as  they  sat  in  state 
in  the  halls  of  their  mansions. 

With  the  fall  of  the  Republic  there  begins  a  third 
period  which  covers  about  three  centuries.  It  had  been 
the  custom  for  a  man  who  had  a  point  of  law  to  argue 
before  a  iudc.r1  trying  a  case  to  endeavour  to  obtain 
from  some  eminent  jurist  an  opinion  in  his  favour,  which 
he  produced  to  the  index  as  evidence  of  the  soundness 
of  the  view  for  which  he  was  contending.  Now  Augus- 
tus, partly  to  enlarge  and  inspirit  the  action  of  the 
jurists,  partly  to  attach  them  to  the  head  of  the  State, 

r  !  The  iudex  (who  is  not  to  be  thought  of  at  this  period  as  a  judge  in  our  sense — 
he  is  more  like  a  jury  of  one,  or  a  referee)  was  not  necessarily  a  skilled  lawyer,  and 
therefore  was  presumably  not  competent  to  decide  a  knotty  technical  point  by  the 
fore*  of  his  own  knowledge. 


678  ROMAN  AND  ENGLISH  LEGISLATION 

permitted  certain  of  the  more  eminent  among  them  to 
give  responsa,  i.e.  answers  or  opinions  on  points  of  law, 
under  and  with  his  authority,  directing  such  opinions, 
when  signed  and  sealed,  to  be  received  by  a  index  trying 
a  case  as  settling  a  controverted  point.  His  successor, 
Tiberius,  issued  formal  commissions  to  the  same  effect 1. 
Here  we  enter  the  third  stage,  for  from  this  time  forward 
not  only  did  it  become  obligatory  on  the  index  to  defer 
to  an  opinion  given  by  one  of  the  '  authorized '  jurists, 
but  there  was  also  created  an  inner  privileged  order 
within  the  whole  body  of  jurists,  this  inner  order  con- 
sisting of  those,  usually  no  doubt  the  most  conspicuous 
by  learning  and  ability,  who  had  obtained  the  imperial 
authorization.  And  out  of  this  privileged  class  the  Em- 
peror was  apparently  accustomed  to  choose  the  great 
judicial  officers  of  state,  the  praetorian  prefect — in  later 
times  the  quaestor  also — the  members  of  the  Imperial 
Council,  and  possibly  the  chief  judicial  magistrates  of 
the  provinces,  so  that  the  career  of  a  jurist  continued 
to  be,  though  in  a  somewhat  different  form,  one  of  the 
main  paths  to  distinction  and  power.  Oratory,  which 
had  formerly  swayed  the  people,  was  now  practically 
confined  to  the  Senate  and  the  Law  Courts,  and  thus 
became  separated  from  politics :  for  even  in  the  Senate 
few  ventured  to  speak  with  freedom.  As  the  profession 
of  law  was  now  the  chief  rival  to  the  profession  of  arms 
it  drew  to  itself  a  large  part  of  the  highest  ability  of  the 
Empire.  After  the  great  decline  in  literature  and  art 
which  marks  the  period  of  the  Antonines,  the  standard 
of  learning,  acuteness,  and  philosophical  grasp  of  mind 
among  the  jurists  still  continued  to  be  high.  Even  their 
Latin  style  is  more  pure  and  nervous  than  we  find 
among  other  writers  of  the  third  century.  The  period  of 

1  The  precise  nature  of  the  action  taken  by  Augustus  and  Tiberius  is  the  subject 
of  some  controversy,  as  to  which  see  Goudy's  edition  of  Muirhead's  History  of 
Roman  Law,  p.  292,  Sohm,  Institution*^  §  18,  and  Kriiger,  Geschichte  der  Quellen 
des  Romischen  Rechts^  §  15.  Responsa  had  been  given  in  earlier  days  by  the  Pon- 
tifices^  and  Augustus  was  Pontifex  Maximus.  As  to  a  similar  practice  among 
Muslims  see  Essay  XIII,  p.  663  ante. 


ROMAN  AND  ENGLISH  LEGISLATION  679 

their  productive  activity — that  which  we  commonly  call 
the  classical  period  of  Roman  Law — may  be  said  to  close 
with  Herennius  Modestinus,  who  was  praetorian  prefect 
about  the  middle  of  the  third  century  of  our  era.  There- 
after we  possess  only  a  few  names  of  notable  jurists, 
scattered  at  long  intervals,  and  apparently  inferior  to 
their  predecessors. 

Although  throughout  these  three  periods  the  jurists 
may  fitly  be  described  as  a  Source  of  Law,  their  func- 
tion was  by  no  means  the  same  from  the  beginning  till 
the  end.  In  the  first  period  they  were  the  depositaries 
of  a  mass  of  customs  which  changed  very  little  ;  and  they 
did  not  so  much  create  law  as  give  a  definite  shape  and 
expression  to  it  in  the  carefully  phrased  rules  and  un- 
varying formulas  which  each  generation  handed  down  to 
the  next.  The  events  and  circumstances  of  the  second 
period,  which  saw  the  knowledge  of  the  old  customs 
much  more  widely  diffused,  and  saw  also  a  considerable 
growth  of  statute  law,  threw  upon  them  the  duty  of  ex- 
pounding both  customs  and  statutes,  and  of  covering 
the  ground  which  neither  customs  nor  statutes  had  oc- 
cupied. This  meant  a  good  deal  in  a  thriving  and  ex- 
panding community,  so  the  interprctatio  iuris  (as  the 
Romans  call  it)  which  they  describe  as  the  chief  service 
rendered  by  these  legal  sages,  became  large  in  quantity, 
though  it  was  almost  entirely  confined  to  the  filling  up 
of  interstices,  and  did  not  attempt  to  produce  new  prin- 
ciples or  lay  down  broad  rules.  Its  authority,  more- 
over, was  a  purely  moral  authority,  based  upon  nothing 
but  the  respect  paid  to  the  intellect  and  learning  of  the 
particular  jurist  from  whom  some  doctrine  or  dictum 
emanated,  regard  being  of  course  had  to  the  length  of 
time  during  which,  or  the  approval  of  the  profession 
with  which,  a  doctrine  or  dictum  had  been  accepted. 
With  the  introduction  in  the  third  period  of  a  specific 
commission  from  the  Emperor,  the  jurist,  that  is  the 
authorized  jurist,  became  recognized  as  competent  to 
make  law  (iuris  conditor).  He  acted  only  by  interpreting, 


680  ROMAN  AND  ENGLISH  LEGISLATION 

i.e.  by  delivering  an  opinion  on  a  point  previously  doubt- 
ful, but  his  decision,  once  given,  had  an  authority  inde- 
pendent of  his  personal  fame,  the  authority  of  the  Em- 
peror himself,  by  this  time  a  source  of  law  through  the 
magisterial  powers  conferred  upon  him  for  life.  Let 
us  note  further,  that  whereas  in  the  earlier  part  of  the 
second  period  it  was  largely  through  the  modelling  of 
the  system  of  actions  and  pleading  that  the  influence  of 
the  jurists  was  exerted,  in  the  later  part  of  that  period 
and  during  the  whole  of  the  third,  it  was  chiefly  by  means 
of  their  writings  that  they  developed  the  law.  Most  of 
these  writings  were  the  work  of  men  who  enjoyed  the 
ins  respondcndi;  yet  some  of  those  who  belong  to  a  time 
before  that  right  began  to  be  granted  carry  no  less 
weight.  Antistius  Labeo  does  not  seem  to  have  en- 
joyed it,  but  he  is  always  quoted  with  the  greatest  re- 
spect, and  it  seems  doubtful  whether  it  was  possessed  by 
Gaius,  who  was,  centuries  after  his  death,  placed  among 
the  five  most  authoritative  writers. 

It  does  not  here  concern  me  to  enlarge  upon  the  la- 
bours of  the  great  legal  luminaries  of  the  earlier  Em- 
pire, either  as  writers  of  treatises  (it  is  in  this  capacity 
that  we  know  them  best,  from  the  fragments  of  their 
works  preserved  in  Justinian's  Digest)  or  as  advisers  of 
the  Sovereign,  assessors  in  his  supreme  Court  of  Appeal, 
and  prompters  of  his  legislative  action.  For  the  present 
purpose  it  is  sufficient  to  suggest  some  reasons  which 
may  account  for  the  more  considerable  part  which  the 
Roman  jurists  played  as  a  source  of  law  than  that  which 
can  be  attributed  to  legal  writers  in  England.  Though 
some  few  of  our  English  treatises  are  practically  law, 
constantly  cited  and  received  as  authorities — Coke  upon 
Littleton  supplies  an  example  from  former  times,  and 
Lord  St.  Leonards  on  Vendors  and  Purchasers  from 
our  own — they  are  not  to  be  compared  in  point  of  quan- 
tity-or  importance  with  the  text-books  out  of  which 
Justinian's  compilation  was  framed.  In  earlier  days  it 
was  no  doubt  different.  The  writings  of  Glanvill  and 


ROMAN  AND  ENGLISH  LEGISLATION  681 

Bracton,  with  the  book  ascribed  to  Britton  and  the  trea- 
tise called  Fleta,  were  all  to  some  extent  recognized  as 
law  in  the  fourteenth  century ;  that  is  to  say,  they  would 
have  powerfully,  and  in  most  doubtful  cases  decisively, 
influenced  the  mind  of  any  judge  to  whose  knowledge 
they  came  when  he  had  to  determine  a  point  of  law. 
In  that  age  there  was  no  such  distinction  drawn  be- 
tween what  is  and  what  is  not  legally  binding  as  the 
wider  experience  and  the  more  precise  analysis  of  mo- 
dern times  has  made  obvious  to  our  minds.  Moreover, 
in  an  age  when  customs  were  still  uncertain,  because 
largely  fluid  and  imperfectly  recorded,  the  statement  of 
what  a  writer  held  to  be  law  had  an  incomparably  greater 
force  than  in  later  days.  And  it  may  be  added  that  the 
extracts  from  the  Roman  Law,  of  which  Bracton's 
treatise,  for  instance,  is  full,  would,  at  least  to  the  eccle- 
siastical lawyers,  carry  with  them  the  authority  of  the 
Roman  law  itself.  After  the  fifteenth  century,  compara- 
tively few  books  hold  a  place  of  authority ;  and  perhaps 
the  best  example  of  those  which  do  is  Littleton's  Treatise 
on  Tenures.  By  this  time  the  abundance  of  reported 
cases  began  to  make  it  less  necessary  to  have  recourse 
to  treatises ;  nor  was  the  writing  of  them  a  favourite 
occupation  of  the  earlier  common  lawyers. 

III.   DIFFERENCE  BETWEEN  THE  ACTION  OF  ROMAN 

AND    THAT    OF    ENGLISH    JURISTS. 

What  are  the  causes  of  this  singular  difference  be- 
tween the  course  of  legal  development  in  England  and 
that  which  it  took  in  Rome?  The  most  obvious  is 
the  different  position  in  which  the  imperial  commission 
placed  certain  of  the  more  eminent  jurists.  They  were 
thereby  practically  erected  into  legislators,  for  their  for- 
mally expressed  opinions  were  treated  as  though  pro- 
ceeding from  the  Emperor  himself,  and  the  Emperor  was 
from  the  first  virtually,  and  afterwards  technically  also, 
a  fountain  of  legislation.  True  it  is  that  this  authority 


682  ROMAN  AND  ENGLISH  LEGISLATION 

was  not  at  first  extended  to  the  treatises  of  these  jurists. 
It  attached,  at  least  in  earlier  days,  only  to  the  responsa 
which  they  had  authenticated  by  their  seal,  and  a  rc- 
sponsum  probably  carried  authority  only  for  the  particu- 
lar case  in  which  it  was  delivered.  But  nothing  was 
more  natural  than  that  its  weight  should  be  accepted 
for  all  purposes,  and  that  the  utterances  of  the  privileged 
jurists,  whether  contained  in  a  collection  of  responsa 
or  in  any  other  kind  of  law-book,  should  command  a 
deference  seldom  yielded  to  any  private  writer,  however 
eminent.  Nor  does  the  fact  that  both  in  their  responsa 
and  in  their  other  writings  these  jurists  differed  from 
one  another,  maintaining  opposite  views  on  many  im- 
portant points,  seem  to  have  substantially  detracted 
from  their  influence.  Such  divergences  were  indeed, 
down  to  Justinian's  time,  a  source  of  embarrassment 
to  practitioners  and  judges.  Looking  at  the  thing  as  a 
matter  of  theory,  we  may  wonder  how  the  inconvenience 
could  have  been  borne  with,  for  unless  a  statute  was 
passed  settling  a  controverted  point,  the  point  might 
remain  always  controvertible.  But  this  is  one  of  the 
many  instances  in  which  we  find  that  a  system  which 
seems,  when  regarded  from  outside,  unworkable,  did  in 
fact  go  on  working.  Probably,  when  the  controversy 
was  one  of  importance,  there  came  after  a  time  to  be 
a  distinctly  preponderating  view,  which  practically  set- 
tled it ;  and  possibly  the  sense  of  responsibility  under 
which  the  authorized  jurists  wrote  contributed  to  make 
them  not  only  careful  but  guarded  and  precise  in  the 
statement  of  their  conclusions. 

Another  cause  for  the  greater  relative  importance  of 
the  Roman  jurists  as  creators  or  moulders  of  law  may 
be  found  in  the  social  position  of  the  legal  profession 
at  Rome.  In  England  the  profession  is  and  always  has 
been  followed  primarily  as  a  means  of  livelihood.  Out 
of  the  many  who  have  failed  to  find  it  remunerative, 
some  few  have  devoted  themselves  to  study  and  have 
enriched  our  jurisprudence  by  valuable  treatises.  But 


/.VM/.1.Y    AND  ENGLISH   LEGISLATION  683 

the  general  tendency  has  been  for  the  men  of  greatest 
mental  vigour  and  diligence,  and  also  for  the  men  of 
the  widest  practical  legal  experience,  to  be  so  com- 
pletely absorbed  by  practice  as  to  have  no  leisure  for 
the  composition  of  books.  English  law-books  are  writ- 
ten mostly  by  young  men  who  have  not  yet  obtained* 
practice,  or  by  older  men  who  through  the  negligence 
of  Fortune,  the  undiscernment  of  solicitors,  or  perhaps 
some  deficiency  in  practical  gifts,  have  never  succeeded 
in  obtaining  it.  In  some  remarkable  instances  they  are 
the  work  of  persons  whose  eminence  has  raised  them  to 
the  judicial  bench.  But  they  are  hardly  ever  written, 
and  indeed  could  scarcely  be  written,  by  the  men  in  full 
practice,  yet  such  men  have  the  great  advantage  of  being 
in  daily  contact  with  the  working  of  the  law  as  a  con- 
crete system,  and  they  include,  not  indeed  all,  but  a 
great  part  of  the  best  legal  talent  of  each  generation. 
At  Rome,  however,  the  jurist  of  republican  days,  mak- 
ing no  gain  from  his  professional  work,  and  not  needing 
it,  for  he  was  a  man  of  rank  and  means,  took  practice 
more  easily,  and  devoted  a  good  deal  of  his  time  to  the 
literary  side  of  his  life.  Thus  we  are  told  that  Labeo 
spent  half  his  year  in  Rome  giving  instruction  to  his 
disciples  and  advice  to  his  clients,  the  other  half  in  the 
country  composing  his  admirable  treatises.  Under  the 
Empire  the  profession  doubtless  attracted  a  large  num- 
ber of  persons  of  lower  station  and  smaller  means.  But 
the  habit  of  writing  and  of  teaching  went  on  among  the 
leaders. 

In  this  habit  of  teaching  we  may  find  a  further  reason 
for  the  prominence  of  the  jurist.  The  giving  of  oral 
instruction  in  law  to  those  who  were  preparing  them- 
selves for  its  practice,  was  at  Rome  always  an  important 
branch  of  a  jurist's  activity.  Cicero  tells  us  how  he 
and  others  among  the  youth  of  his  own  generation  stood 
as  disciples  round  the  chair  of  Mucius  Scaevola,  gather- 
ing the  crumbs  of  legal  wisdom  which  dropped  from 
his  lips,  putting  questions  and  doubtless  taking  notes 


684  ROMAN  AND  ENGLISH  LEGISLATION 

of  the  explanations  which  the  sage  deigned  to  give. 
Other  leading  luminaries  were  surrounded  by  similar 
groups.  Two  centuries  later,  Gaius  is  generally  thought 
to  have  been  a  teacher  of  law,  and  won  his  high  repu- 
tation largely  by  the  educational  treatise  which  has  come 
down  to  us.  And  in  still  later  times  the  two  great  law 
schools  of  Beyrut  and  Constantinople  were  the  chief 
homes  of  legal  learning,  and  those  who  lectured  in  them 
among  the  chief  legal  lights  of  the  Roman  world.  Four 
members  of  the  Commission  which  prepared  the  Digest 
were  chosen  by  Justinian  from  among  these  teachers, 
and  given  the  place  of  honour  next  after  Tribonian,  the 
president  of  the  Commission.  In  England,  on  the  other 
hand,  legal  teaching  had  during  the  last  century  and  a 
half  fallen  sadly  into  abeyance,  and  has  only  within  the 
last  few  years  shown  signs  of  reviving.  Yet  it  is  clear 
that  the  practice  of  teaching  is  of  the  utmost  value  for 
the  composition  of  treatises,  not  only  because  it  sup- 
plies a  motive  and  an  occasion,  but  also  because  it  tends 
to  make  a  book  more  systematic  and  lucid,  since  the 
teacher  feels  in  lecturing  the  paramount  necessity  of 
logical  arrangement  and  of  clear  expression.  The  best 
survey,  at  once  concise  and  comprehensive,  of  English 
law  that  has  ever  appeared — Mr.  Justice  Blackstone's 
book — was  founded  on  oral  lectures  given  in  Oxford: 
and  the  great  works  of  Chancellor  Kent  and  Justice 
Story  in  America  had  a  like  origin.  The  merits  of  these 
two  last-named  writers  are  just  the  kind  of  merits  which 
the  habit  of  teaching  tends  to  produce.  Nor  ought  we 
to  forget  a  more  recent  example,  the  small  but  emi- 
nently acute  and  suggestive  volume  of  lectures  on  the 
Common  Law  of  Mr.  Oliver  Wendell  Holmes,  now  Chief 
Justice  of  Massachusetts. 

The  main  cause  of  the  smaller  number  in  England 
of  legal  writers  who  have  taken  rank  as  Sources  of  Law, 
is  doubtless  to  be  sought  in  the  fact  that  the  highest 
juridical  talent  of  the  most  experienced  men  has  with 
us  poured  itself  through  a  different  channel,  finding  its 


ROMAN  AND  ENGLISH  LEGISLATION  685 

expression  in  the  decisions  of  the  Judges.  It  is  our 
series  of  Reported  Cases,  now  swollen  to  many  hun- 
dreds of  volumes,  a  mass  of  law  so  large  that  few  lawyers 
possess  the  whole  of  it,  that  really  corresponds  to  the 
treatises  of  the  great  Roman  jurists.  The  Reports  fill 
a  place  in  English  legal  studies  corresponding  in  a  gene- 
ral way  to  that  which  those  treatises  filled  in  the  Roman 
Empire.  They  are  the  work  of  a  similar  class  of  men, 
those  who  from  active  practice  have  risen  to  the  highest 
places  in  the  profession.  Men  in  such  a  position  have 
rarely  the  leisure  to  occupy  themselves  with  writing 
law-books,  nor  have  they  usually  an  impulse  to  do  so, 
since  what  they  have  to  say  can  be  adequately  delivered 
in  their  spoken  or  written  judgements.  And  though  the 
merits  of  our  English  judicial  decisions -are  not  alto- 
gether the  same  as  those  of  the  great  Roman  text-books, 
still  the  judgements  of  the  most  eminent  judges  will,  if 
taken  as  a  whole,  bear  comparison  either  with  those 
text-books  or  with  any  other  body  of  law  produced  in 
any  country.  In  logical  power,  in  subtle  discrimination, 
in  breadth  of  view,  in  accuracy  of  expression,  such  men 
as  Lord  Hardwicke,  Lord  Mansfield,  Lord  Stowell, 
Sir  William  Grant,  Mr.  Justice  Willes,  Sir  George 
Jessel,  Lord  Cairns,  and  Lord  Bowen,  to  take  a 
few  out  of  many  great  names,  may  fairly  rank  side 
by  side  with  Papinian  or  Ulpian,  with  Pothier  or 
Savigny. 

This  is  not  the  place  for  an  attempt  to  estimate  the 
respective  advantages  of  case  law  and  text-book  law. 
But  it  may  be  remarked  that  they  have  more  in  com- 
mon than  might  at  first  sight  appear.  English  text- 
books are  almost  entirely  a  collection  of  cases  with 
comments  interspersed.  Sometimes  a  general  rule  is 
stated  which  may  go  a  trifle  further  than  the  cases  do; 
sometimes  an  opinion  is  thrown  out  on  a  point  not 
covered  by  authority.  Still  the  cases  are  the  gist  of 
the  book.  I  have  heard  an  eminent  judge  l  of  our  own 

»  The  late  Lord  Justice  W.  M.  James. 


686  ROMAN  AND  ENGLISH  LEGISLATION 

time  observe  that  the  easiest  way  to  codify  the  law  of 
England  would  be  to  enact  that  some  eight  or  ten  es- 
tablished text-books,  such,  for  instance,  as  Jarman  on 
Wills,  Chitty  on  Contracts,  Williams  on  Executors, 
Lindley  on  Partnership,  Smith's  Mercantile  Law,  Sug- 
den  on  Powers,  Smith's  Leading  Cases,  Hawkins  on  the 
Interpretation  of  Wills,  Dicey  on  Domicil,  should  have 
the  force  of  statutes.  To  do  this  would  add  little  to  the 
volume  of  the  existing  English  law,  for  the  text-books 
mentioned  are  in  reality  digested  summaries  of  decisions 
that  lie  scattered  through  the  Reports.  And  similarly 
the  treatises  of  the  Roman  lawyers  contain  a  large  num- 
ber of  cases,  i.e.  opinions  given  by  eminent  lawyers  upon 
sets  of  facts  laid  before  them  or  imagined  by  them  in 
order  to  show  the  application  of  a  principle.  The  Ro- 
mans themselves  attribute  high  authority  to  a  concur- 
rent line  of  decisions  l ;  and  doubtless  decisions  given 
by  magistrates  or  by  emperors  found  their  way  into, 
and  influenced  the  text-books,  though  we  do  not  know 
what  means  were  taken  of  recording  them.  In  fact  the 
difference  between  the  English  and  the  Roman  system 
resides  chiefly  in  two  points.  With  us  the  binding  force 
of  a  rule  depends  on  its  having  been  actually  applied  to 
the  determination  of  a  concrete  case.  With  the  Ro- 
mans an  opinion  delivered  in  a  res  iudicata  is  not  neces- 
sarily weightier'  than  if  it  was  delivered  in  any  other 
way.  It  is  valid  simply  because  it  proceeds  from  a  high 
judicial  authority.  Probably  in  early  imperial  days  there 
was  a  difference  between  the  force  of  a  jurist's  responsum 
signed,  sealed,  and  produced  to  a  index,  and  an  opinion 
expressed  in  any  other  way  by  the  same  jurist,  like  our 
distinction  between  so  much  of  a  judgement  as  is  needed 
for  the  decision  of  the  case  and  the  accompanying  obiter 
dicta.  But  any  such  difference  seems  to  have  presently 
disappeared.  And  secondly,  while  the  opinions  on  points 
of  law  of  English  jurists  are  scattered  here  and  there 
over  hundreds  of  volumes,  with  only  a  chronological 

1  Dig.  i.  3.  38. 


ROMAN  AND  ENGLISH  LEGISLATION  687 

arrangement,  those  of  Roman  jurists  were  gathered  into 
systematic  treatises. 

The  Roman  system  has  the  merits  of  logical  arrange- 
ment, of  consecutiveness,  of  conciseness;  the  English, 
wanting  these,  has  advantages  in  being  so  copious  as 
to  cover  an  immense  variety  of  circumstances,  and  in 
consisting  of  opinions  delivered  under  the  stress  of  re- 
sponsibility for  doing  justice  in  the  particular  case.  It 
presents  moreover  to  students  an  admirable  training 
in  the  art  of  applying  principles  to  facts.  Both  systems 
have  the  defect  of  uncertainty,  because  under  both  there 
may  be  a  conflict  of  views  resting  on  equal  authority. 
Broadly  regarded,  both  may  be  said  to  spring  from  the 
same  source.  According  to  German  writers,  the  law 
made  by  the  jurists  springs  from  what  these  writers 
call  the  *  legal  consciousness  of  the  people/  and  derives 
its  ultimate  authority  from  Custom,  i.e.  from  the  tacit 
acceptance  by  the  people  of  certain  doctrines  and  rules. 
We  in  England  dwell  upon  its  formal  recognition  by 
the  Courts  as  the  proof  of  its  authority.  But  in  both 
cases  that  which  becomes  recognized  as  law  has  passed 
through  and  been  shaped  in  the  workshop  of  Science. 
It  is  the  learning  and  skill  of  trained  professional  stu- 
dents, whether  English  judges  or  Roman  text-writers, 
that  has  done  the  work  which  the  people,  or  the  Courts 
for  the  people,  have  accepted. 

IV.    MAGISTRATES  AND  JUDGES  AS  MAKERS 
OF  LAW. 

We  come  now  to  consider  the  second  of  the  three 
great  sources  of  law,  the  Official  or  Magistrate.  He 
holds  an  intermediate  place  between  the  Jurist  on  the 
one  hand,  and  the  Supreme  Power,  whether  an  Emperor 
or  a  Parliament,  on  the  other,  speaking  with  more  of 
plenary  authority  than  the  former  and  with  less  than 
the  latter.  He  may  at  first  sight  appear  to  be  not  really 
a  species  by  himself,  but  merely  a  particular  instance  of 


688  ROMAN  AND  ENGLISH  LEGISLATION 

legislation  by  the  Supreme  Power  in  the  State,  acting 
not  directly  (i.e.  not  as  itself  enunciating  legal  rules)  but 
mediately,  by  delegating  its  function  of  legislation  to  a 
person  clothed  with  its  authority  and  speaking  in  its 
name. 

This  view  has  in  fact  been  held  by  some  writers.  That 
it  is,  however,  an  erroneous  view  will  appear,  when  we 
come  to  scrutinize  the  Roman  facts  as  the  Romans 
understood  them,  and  the  English  facts  as  they  were  un- 
derstood in  the  fifteenth  century.  Delegation  by  the 
supreme  legislative  authority  to  some  officer  or  magi- 
strate no  doubt  may,  and  frequently  does,  take  place. 
In  England,  for  example,  Acts  of  Parliament  sometimes 
commit  the  duty  of  making  rules  to  an  official,  such  as 
the  Lord  Chancellor,  or  to  such  a  body  as  the  Council 
of  Judges  of  the  Supreme  Court  of  Judicature,  or  to  the 
Privy  Council,  that  is  to  say,  to  a  Minister  advised  by 
his  permanent  official  staff,  who  procures  the  approval 
of  the  Crown  in  Council  to  what  he  issues  in  the  form  of 
an  Order  in  Council1.  Where  the  function  is  so  dele- 
gated, the  rules  or  ordinances  made  in  pursuance  of  the 
statute  have  the  full  force  of  the  statute  that  gave  power 
to  make  them.  Here  the  phenomenon  is  too  common 
and  too  simple  to  need  explanation  or  discussion.  It  is 
quite  another  thing  to  maintain  that  the  legislative  action 
of  the  Magistrate  is  always  of  this  character,  a  mere  in- 
stance of  the  exercise  of  delegated  power.  The  view 
is  not  historically  true  of  the  Roman  Magistrate — Prae- 
tor, Censor,  Aedile,  or  whatever  else  he  may  be,  firstly 
because  he  did  not  in  fact  receive  any  such  delegation 
from  the  people ;  secondly,  because  nobody  supposed 
him  to  have  received  it.  He  was  always  distinctly  con- 
ceived of  as  acting  by  his  own  authority,  whatever  that 
may  be,  a  matter  to  which  we  must  presently  return. 
It  is  not  true  of  the  English  Judge — whether  of  the 
indices  terrae  of  the  Common  Law  Courts  when  they  take 

1  Orders  in  Council  are  also  issued  in  certain  cases  under  the  prerogative  of  the 
Crown  without  statutory  -; -legation. 


ROMAN  AND  ENGLISH  LEGISLATION  689 

shape  in  the  twelfth  and  thirteenth  centuries,  or  of  the 
Chancellor  of  the  fifteenth,  or  of  indeed  their  modern 
successors,  seeing  that  the  theory  of  the  English  law  and 
constitution  has  remained  in  these  points,  at  least,  sub- 
stantially unchanged.  That  theory  is  that  the  judges  of 
the  Common  Law  Courts  are  nothing  more  and  nothing 
less  than  the  officers  who  expound  and  apply  the  Com- 
mon Law,  a  body  of  usages  held  to  be  known  to  the 
people  and  by  which  the  people  live,  usages  which  ex- 
isted, in  their  rudimentary  state,  as  far  back  as  our 
knowledge  extends,  most  of  which  have  not  been  for- 
mally embodied  in  any  legislative  act,  but  which  have 
been  always  recognized  as  binding.  Such  customary 
rules  are  not  law  because  they  are  declared  to  be  so  by 
the  judges ;  on  the  contrary  the  judges  enforce  them 
because  already,  antecedently  to  their  decision,  binding 
law.  The  judges  have  never  received  delegated  au- 
thority from  Parliament.  So  far  as  authority  has  been 
delegated  to  them  it  is  the  authority  of  the  Crown. 
But  the  Crown  cannot  empower  them,  and  never  pur- 
ported to  empower  them,  to  make  the  law.  This  is 
abundantly  clear  regarding  the  Common  Law  Courts, 
who  are  merely  the  exponents  of  the  customs  of  the 
land. 

The  case  of  the  mediaeval  Chancellor  is  rather  dif- 
ferent. He  is  rather  more  than  an  exponent  of  the  law. 
He  virtually  creates  law  by  his  executive  action.  But 
he  does  not  do  so  by  any  expressly  delegated  power. 
At  a  time  when  it  was  well  settled  that  the  Crown  alone 
could  not  (except  possibly  in  some  few  directions — and 
even  this  was  not  admitted  by  the  House  of  Commons) 
legislate,  Parliament,  so  far  from  giving  even  by  impli- 
cation any  authority  to  the  Chancellor,  was  jealous  of 
and  tried  to  fetter  his  action.  To  allege  that  what  are 
called  the  legislative  functions  of  any  English  judge 
arise  from  a  commission  given  him  by  the  Supreme 
Power,  i.e.  Parliament,  to  exercise  them,  is  an  inversion 
of  historic  truth  and  legal  doctrine,  an  attempt  to  sup- 
44 


690  ROMAN  AND  ENGLISH  LEGISLATION 

port  a  false  theory  by  imaginary  facts  1.  It  is  easier  and 
safer  to  look  at  our  system  in  the  aspect  it  bore  to  those 
who  witnessed  the  earlier  stages  of  its  growth,  and  to 
recognize  the  existence  of  a  peculiar  form  of  law-mak- 
ing— that  which  naturally  and  inevitably  arises  out  of 
the  application  and  administration  of  the  law,  especially 
where  that  law  is  largely  customary,  not  embodied  in 
formal  declarations  of  a  sovereign's  will.  If  therefore 
we  are  to  have  a  theory  of  the  position  of  the  Magistrate 
or  Judge,  a  definition  of  his  functions,  we  must  rather 
call  him  (however  vague  the  expression  may  appear  to 
those  who  prefer  the  phantom  of  precision  to  the  sub- 
stance of  truth)  the  recognized  and  permanent  organ 
through  which  the  mind  of  the  people  expresses  itself 
in  shaping  that  part  of  the  law  which  the  State  power 
does  not  formally  enact.  He  is  their  official  mouthpiece, 
whose  primary  duty  is  to  know  and  to  apply  the  law, 
but  who,  in  applying  it,  expands  it  and  works  it  out  au- 
thoritatively, as  the  jurists  do  less  authoritatively.  He 
represents  the  legal  intelligence  of  the  nation,  somewhat 
as  upon  one  theory  of  papal  functions  the  bishop  of  the 
old  imperial  See  represents  the  religious  intelligence  and 
spiritual  discernment  of  the  Christian  community  on 
earth;  and  therefore,  like  the  Pope,  he  represents  the 
principle  of  that  development  which  it  is  his  function 
to  guide.  As  the  Romans  call  their  Praetor  the  living 
voice  of  the  law,  so  is  the  Magistrate  always,  in  Eng- 
land as  at  Rome,  the  voice  whereby  the  people,  the 
ultimate  source  of  law,  shape  and  mould  in  detail  the 
rules  which  seem  fitted  to  give  effect  to  their  constant 
desire  that  the  law  shall  be  suitable  to  their  needs,  a 
just  expression  of  the  relations,  social,  moral,  and  eco- 
nomic, which  in  fact  exist  among  them.  The  Magi- 
strate is  by  no  means  their  only  voice,  for  they  also 

1  If  the  view  in  question  is  defended  as  being  if  not  historically  true  yet  a  con- 
venient analysis  of  the  actual  facts  of  the  case  in  modern  England,  the  answer  is 
that  the  Judge,  as  we  know  him  to-day,  can  be  represented  as  a  delegate  of  Par- 
liament only  by  arguing  that  Parliament  commands  whatever  it  does  not  forbid— 
a  way  of  making  facts  square  with  a  pre-conceived  theory,  which  is  not  only  op- 
posed to  English  traditions,  but  essentially  unreal  and  fantastic. 


ROMAN  AND  ENGLISH  LEGISLATION  «91 

express  themselves,  especially  upon  urgent  questions,  by 
direct  legislation;  and  the  more  they  get  accustomed 
to  do  so,  the  narrower  does  the  province  of  the  Magi- 
strate become.  But  there  are  many  things  which  legis- 
lation cannot  do  in  the  earlier  stages  of  a  State's  growth, 
partly  because  proper  machinery  is  wanting,  partly  be- 
cause political  dissensions  intervene,  partly  because 
legal  ideas  are  still  fluid,  fluctuating,  and  unfit  for  expres- 
sion in  terms  at  once  broad  and  definite.  Moreover, 
in  even  the  most  highly  organized  States,  some  things 
always  remain  which  a  legislature  cannot  conveniently 
deal  with,  or  where  its  action  needs  to  be  constantly  sup- 
plemented, and  perhaps  even  corrected,  by  some  organ 
which  can  work  in  a  more  delicate  and  tentative  manner. 

So  much — that  I  may  not  further  illustrate  what  will 
become  clearer  from  a  survey  of  the  Magistrate  as  he 
has  appeared  in  history — may  be  said  of  Legislation  by 
a  State  Official  in  general,  whether  he  be  a  Roman 
Magistrates  or  an  English  Chancellor.  Now  let  us  come 
to  the  Roman  Praetor. 

In  the  early  days  both  of  Rome  and  of  England  the 
administration  of  justice  belonged  to  the  chief  magi- 
strate of  the  State  and  to  the  assembly  of  the  people, 
who  in  the  very  earliest  days  had  normally  acted  to- 
gether. In  England,  although  the  judicial  functions  of 
the  Assembly  survived  for  some  purposes  (as  they  sur- 
vive to-day  in  Parliament),  the  conduct  of  ordinary  ju- 
dicial work  which  could  not  conveniently  be  exercised 
by  the  Assembly  passed  to  the  king,  and  when  judges 
appeared,  they  were  his  officers.  In  Rome  also  the  king 
was  the  head  of  the  judicial  system :  and  when  the  kingly 
office  was  abolished,  the  functions  that  had  been  his 
were  transferred  to  the  two  Consuls,  who  were  virtually 
annual  kings.  After  a  time,  owing  to  political  disputes 
which  need  not  be  described  here,  a  third  annual  magi- 
strate was  added,  called  the  Praetor  *,  who,  while  capable 

1  The  name  Praetor  meant  Leader,  and  was  originally  applied  to  the  Consuls. 
The  Praetor's  competence  for  military  functions  was  equal  to  that  of  the  Consuls. 
He  had  both  imperium  and  iurisdictio. 


692  ROMAN  AND  ENGLISH  LEGISLATION 

of  exerting  nearly  all  the  executive  power  of  the  Con- 
suls, received  the  administration  of  justice  as  his  special 
province.  As  the  city  grew  and  litigation  increased, 
more  Praetors  were  added.  The  first  had  been  ap- 
pointed in  B.C.  367;  the  second,  who  presently  became 
(.charged  with  suits  in  which  one  or  both  of  the  parties 
did  not  enjoy  Roman  citizenship,  dates  from  about  B.C. 
247.  He  came  to  be  called  Praetor  peregrinus,  while  the 
original  Praetor  was  described  as  the  Praetor  of  the 
City  (urbanus).  The  latter  remained  the  head  of  the 
judicial  system,  and  I  shall  therefore  speak  of  the  Prae- 
tor in  the  singular.  Other  Praetors  were  added,  partly 
in  order  to  act  in  the  provinces,  partly  in  order  to  under- 
take special  kinds  of  jurisdiction.  By  the  time  of  Trajan 
there  were  eighteen  of  them. 

In  the  later  republican  period  we  may  speak  of  the 
Praetor  as  being  partly  a  Judge,  partly  a  Minister  of 
Justice  who  directed  the  general  working  of  the  Courts. 
It  was  his  duty  to  issue  when  he  assumed  office  a  state- 
ment of  the  rules  by  which  he  intended  to  guide  his 
judicial  action  during  his  year,  as  well  as  a  table  of  the 
formulae  in  which  applications  ought  to  be  made  to  him 
for  the  exercise  of  his  functions.  These  rules  were  pub- 
lished in  a  document  called  the  Edict.  It  contained 
a  concise  statement  of  the  cases  in  which  he  would 
allow  an  action  to  be  brought,  and  of  the  pleas  which 
he  would  admit  as  constituting  defences  to  actions. 
This  statement  did  not  purport  to  supersede  the  old 
actions  and  rules  which  had  either  come  down  as  a  set- 
tled part  of  the  ancient  customary  law,  or  had  been 
enacted  by  any  statute  of  the  popular  assembly.  The 
Praetor  always  held  himself  to  be  bound  by  statutes1. 

1  The  Praetor,  said  the  Romans,  does  not  make  law  (Praetor  iusfacere  nonpo- 
tesf).  Yet  they  also  called  the  rules  which  emanated  from  him  iura  (see  Cic.  De 
Invent,  ii.  22)  :  and  the  whole  body  of  rules  due  to  his  action  was  in  later  times 
described  as  ius  honorarium,  ius  praetor  turn.  Sometimes  a  right  resting  on  ius  is 
contrasted  with  one  depending  on  the  protection  (tuitio)  of  the  Praetor:  Ulpian  in 
Dig.  vii.  4.  i.  Those  who  put  the  Praetor's  authority  highest  called  the  Edict  lex 
annua,  says  Cicero,  Verr.  ii.  i.  42.  This  uncertainty  of  language  corresponds  to 
the  peculiar  character  of  these  rules,  which  in  one  sense  were,  and  in  another  were 
not,  Law. 


ROMAN  AND  ENGLISH  LEGISLATION  693 

But  his  Edict  added  materially  to  the  old  actions  and 
rules,  incidentally  modified  them,  ultimately  did  super- 
sede many  of  them.  He  awarded  remedies  which  the 
older  law  had  not  awarded.  He  recognized  defences 
(e.g.  in  cases  of  fraud)  which  the  old  law  had  not  recog- 
nized. He  provided  means  of  enforcing  rights  more 
effective  than  those  which  the  old  law  had  provided. 
As  the  later  Romans  said,  he  acted  for  the  sake  of  aid- 
ing, or  supplying  the  omissions  of,  or  correcting,  the 
old  strict  law,  with  a  view  to  the  public  advantage  l. 

Each  Edict  was  valid  only  for  the  Praetor's  year  of 
office.  Each  succeeding  Praetor,  however,  usually  re- 
peated nearly  all  the  declarations  that  had  been  con- 
tained in  the  Edicts  of  his  predecessors,  though  it  often 
happened  that  a  new  Edict  introduced  some  improve- 
ment in  point  of  form  and  expression,  or  perhaps  so 
varied,  or  added  to,  the  announcements  in  the  last  pre- 
ceding Edict  as  to  introduce  an  improvement  in  sub- 
stance, for  when  a  Praetor  thought  that  it  was  necessary 
to  promise  a  new  remedy  by  action,  or  to  recognize  a 
new  plea,  it  was  his  duty  to  insert  it.  In  this  way  the 
practice  of  the  Courts  was  continually  changing,  yet 
each  single  change  was  so  slight  that  the  process  was 
very  gradual,  hardly  more  rapid  than  that  which  has 
gone  on,  at  certain  periods  in  the  history  of  English 
law,  through  the  action  of  the  Court  of  Chancery,  or 
that  which  went  on  in  the  Court  of  King's  Bench  under 
Lord  Mansfield.  There  was  no  permanent  enactment 
of  a  new  rule,  for  a  Praetor's  declarations  bound  him- 
self only  and  not  his  successors  2.  But  as  his  promises 
were  usually  repeated  by  his  successors,  a  Praetor  when 

1  '  lus  praetorium  est  quod  praetores  introduxerunt  adiuvandi  vel  supplendi  vel 
corrigendi  iuris  civilis  gratia  propter  utilitatem  publicam.'    Papinian  in  Dig.  i.  i.  7. 

2  His  declarations  did  not  originally,  in  strictness  of  law,  bind  even  himself,  and 
it  was  found  necessary  to  enact,  by  a  lex  Cornelia  of  B.C.  67,  that  the  Praetor  should 
not  depart  from  the  statements  of  his  Edict  ('  ut  praetores  ex  edictis  suis  perpetuis 
ius  dicerent,  quae  res  cunctam  gratiam  ambitiosis  praetoribus  qui  varie  ius  dicere 
solebant,  sustulit.'     Ascon.  in  Cic.  Pro  Cornelia,  58. 

The  Edict  regularly  issued  at  the  beginning  of  each  year  was  called  Edictum 
perpetuum,  as  opposed  to  Edictum  repentinum,  one  issued  for  an  emergency. 


694  ROMAN  AND  ENGLISH  LEGISLATION 

he  promised  a  new  remedy,  practically  created  a  new 
right,  or  enlarged  and  confirmed  an  old  one. 

To  us  moderns  the  function  thus  committed  to  a  Magi- 
strate seems  a  large  function,  and  his  power  a  possi- 
bly dangerous  power.  No  modern  constitutional  State 
would  vest  such  a  power  either  in  a  Judge  or  in  a 
Minister  of  Justice.  But  to  the  Romans  the  Praetor  is 
(above  all  things)  the  representative  of  the  Executive 
and  Judicial  Power  of  the  State.  He  is  the  State  em- 
bodied for  certain  purposes.  He  is  something  more 
than  a  mere  minister,  whom  the  people  have  chosen  to 
serve  them  in  a  certain  capacity.  He  represents  the 
majesty  of  the  State  over  against  the  people,  and  deals 
with  them  rather  as  a  Ruler  than  as  a  Servant.  Few 
nations  have  formed  so  strong  and  definite  a  conception 
of  State  power  as  the  Romans  did ;  and  none,  perhaps, 
expressed  it  so  distinctly  in  the  authority,  very  wide, 
very  drastic,  and  yet  eminently  constitutional,  which 
they  entrusted  to  their  great  State  officials.  The  con- 
ception was  to  them  so  dear,  or  so  necessary,  that  even 
when  the  misdeeds  of  a  monarch  had  led  to  the  aboli- 
tion of  monarchy,  they  did  not  restrict  the  magisterial 
power  itself,  but  divided  it  between  two  co-ordinate 
magistrates  whose  co-existence  made  each  a  check  on 
the  other ;  and  when  the  powers  of  these  two  (the  Con- 
suls) were  subsequently  found  to  need  limitation,  they 
devolved  upon  other  magistrates  (the  Tribunes)  the 
right  to  step  in  and  check  the  exertion  in  some  particular 
instance  of  the  consular  power. 

The  Praetor,  therefore,  having  (like  the  Consul)  im- 
perium  (i.e.  the  power  of  issuing  commands  as  an  execu- 
tive officer,  and  of  compelling  obedience  to  them  by 
putting  forth  material  force),  is  a  stronger  personality 
than  the  English  Common  Law  Judge,  and  can  act  more 
boldly  and  more  effectively.  We  hear  of  no  demand 
for  a  restriction  of  his  functions,  but  only  of  a  statute 
which  checked  arbitrary  discretion  by  requiring  him  to 
administer  the  law  in  accordance  with  his  Edict.  More- 


A'O.l/.lA     l\/>  ENGLISH  LEGISLATION  695 

over,  while  the  English  judge  is,  down  till  the  Revolu- 
tion, an  official  removable  by  the  Crown,  the  Praetor 
has  no  one  over  him,  and  has,  therefore,  not  only  a 
more  unfettered  discretion  in  carrying  out  his  judicial 
and  quasi-legislative  mission,  but  also  a  clearer  sense 
of  his  duty  to  do  so,  because  this  is  the  function  which 
the  nation  expects  him  to  discharge.  The  English  Judge 
is  primarily  a  judge,  appointed  to  pronounce  a  decision : 
the  Prateor  is  also  an  executive  magistrate,  placed  at 
the  head  of  the  whole  judicial  administration  of  what 
was  originally  a  small  community,  with  the  duty  of  pro- 
viding that  the  system  works  properly.  His  wider 
powers  give  him  a  sense  of  the  obligation  laid  on  him 
to  see  that  justice  is  duly  done,  that  the  system  of  pro- 
cedure is  such  as  to  enable  justice  to  be  done,  that 
wrongs  for  which  there  ought  to  be  some  remedy  have 
some  remedy  provided  against  them ;  in  short,  that  the 
law  as  a  machinery  for  setting  things  right  and  satisfying 
the  demands  of  the  citizens  is  kept  in  proper  order,  with 
such  improvements  and  extensions  as  the  changing 
needs  of  the  nation  suggest.  His  business  is  not  merely 
to  declare  the  law  but  to  keep  the  law  and  its  machinery 
abreast  of  the  time. 

The  functionary  who  in  England  offers  the  nearest 
analogy  to  the  Praetor,  an  analogy  which  has  been  so 
often  remarked  that  only  a  few  words  need  be  spent  on 
it,  is  the  Chancellor.  The  Chancellor  of  the  fourteenth, 
fifteenth,  and  sixteenth  centuries  was  the  organ  of  the 
prerogative  of  the  Crown  on  its  judicial  side,  and  as  that 
prerogative  was  then  very  wide,  he  was  thus  invested 
with  an  authority  half  judicial,  half  administrative,  not 
unlike  that  of  the  Roman  magistrate.  As  it  belonged 
to  the  Crown  to  see  that  justice  was  done  throughout 
the  realm,  and  the  means  for  doing  it  provided,  the 
Chancellor  was  expected  and  obliged  to  supply  new 
machinery  if  the  old  proved  inadequate,  and  this  he  did 
in  virtue  of  an  authority  which,  in  its  undefined  width 
and  its  compulsive  power,  resembled  the  Roman  im- 


696  ROMAN  AND  ENGLISH  LEGISLATION 

perium.  Accordingly  when  the  development  of  the  Com- 
mon Law  Courts  stopped  in  the  fourteenth  century  be- 
cause the  Common  Law  judges  refused  to  go  beyond 
the  remedies  which  the  Courts  provided,  and  made  only 
a  limited  and  timid  use  even  of  their  power  of  issuing 
new  writs  in  consimili  casu,  the  Chancellor  went  on. 
From  the  time  of  Edward  the  Third  petitions  to  see 
right  done,  which  had  been  previously  addressed  to  the 
Crown,  began  to  be  addressed  to  the  Chancellor,  and 
the  extraordinary  range  of  his  powers  was  expressed 
by  the  phrase  that  he  acted  in  matter-  of  the  King's 
grace  and  favour,  that  is  to  say,  he  acted  where  the 
subject  could  not  demand  a  remedy  as  of  common  right 
from  the  ordinary  Courts  of  the  land.  Thenceforward 
the  range  of  action  of  the  Common  Law  Courts  did 
not  so  much  need  to  be  extended,  though  a  certain 
slight  measure  of  development  continued  in  them  even 
as  late  as  the  days  of  Lord  Mansfield,  whose  extension 
of  the  scope  of  the  '  Common  Counts  for  money  had 
and  received  to  the  use  of  the  plaintiff '  has  a  faint  fla- 
vour of  praetorian  methods.  It  was  partly  because  the 
Common  Law  judges  had  halted  that  the  Chancellor, 
if  I  may  use  a  familiar  expression,  took  up  the  running, 
and  exerted  the  powers  which  the  sovereign  entrusted 
to  him,  and  which,  as  keeper  of  the  sovereign's  con- 
science, he  was  held  to  be  justified  in  exerting  so  as  to 
provide  fresh  and  efficient  remedies  for  wrongs  that 
defied  either  the  rigid  system  of  procedure  or  the  feeble 
executive  capacity  of  the  Common  Law  Courts.  During 
this  period  the  Chancellor,  though  a  judge,  is  also  much 
more  than  a  judge,  and  it  is  as  a  great  executive  officer, 
clothed  with  the  reserved  and  elastic  powers  of  the  sove- 
reign, that  he  is  able  to  accomplish  so  much.  Yet  his 
action  is  not  so  free  as  was  the  Praetor's,  for  he  does 
not  directly  interfere  with  the  pre-existing  Courts.  He 
may  walk  round  them :  he  may  forbid  a  plaintiff  to 
use  the  judgements  they  give ;  but  he  cannot  remould 
their  methods  nor  extend  their  remedies.  The  Praetor, 


ROMA\     l\/>    i. \dLlsn    LEGISLATION  697 

on  the  other  hand,  is  in  a  certain  sense  the  head  of  all 
Courts,  so  that  his  action  covers  the  whole  field  of  law. 
After  a  time,  however,  the  creative  energy  of  the  Chan- 
cellor slackens,  partly  because  the  prerogative  of  the 
Crown  was  being  narrowed,  partly,  apparently,  from 
the  example  of  the  other  Courts,  for  when  Chancery 
decisions  also  began  to  be  reported  like  those  of  other 
tribunals,  he  naturally  felt  himself  more  and  more  fet- 
tered by  the  record  of  the  decisions  of  his  predecessors. 
In  the  eighteenth  century,  precedents  gather  round  the 
Chancellor  and  fence  him  in :  he  cannot  break  through 
so  as  to  move  freely  forward  on  new  lines  of  reform. 
He  is  like  a  stream  which,  as  it  deepens  its  channel, 
ceases  to  overflow  its  banks. 

Before  I  note  a  further  point  of  difference  between 
the  Praetor  and  our  English  Judiciary,  and  a  further 
reason  why  the  development  of  the  law  by  the  latter 
was  so  much  less  bold,  I  must  advert  to  one  feature 
which  the  Roman  and  English  systems  have  in  common. 
In  both  law  is  made  through  the  control  of  procedure. 
The  Praetor  promises  to  give  a  certain  action,  or  allow 
a  certain  defence,  in  certain  states  of  fact ;  i.e.  if  a  plaintiff 
alleges  certain  facts,  the  Praetor  will  allow  him  to  sue, 
and  will  see  that  judgement  is  given  in  his  favour  should 
those  facts  be  proved,  while  if  a  defendant  alleges  cer- 
tain facts,  the  Praetor  will  allow  these  to  be  set  forth 
in  a  plea,  and  will  see  that  judgement  is  given  in  hi.s 
favour  if  the  facts  as  stated  in  the  plea  are  proved. 
Similarly  the  English  Courts  are  concerned  not  with 
abstract  propositions  of  law,  but  with  remedies.  It  is 
by  granting  a  remedy,  i.e.  by  entering  judgement  for 
the  plaintiff  or  the  defendant  in  pursuance  of  certain 
reasons  which  they  deliver  publicly,  that  the  Courts  be- 
come sources  of  law.  And  though  the  Chancellor  goes 
further  than  the  Common  Law  Courts,  because  in  the 
early  days  of  his  action  he  laid  hold  of  a  person  under 
circumstances  to  which  no  rule  of  law  had  been  pre- 
viously declared  to  apply,  and  compelled  him  to  appear 


698  ROMAN  AND  ENGLISH  LEGISLATION 

as  defendant  in  a  suit,  yet  the  Chancellor  also  never  de- 
livers a  legal  opinion  except  for  the  purpose  of  ex- 
plaining the  decree  which  he  issues  for  adjusting  the 
rights  of  the  parties  to  a  concrete  dispute.  So  far,  there- 
fore, the  Roman  and  the  English  officials  moved  on  simi- 
lar lines.  Both  were  concerned  with  remedies ;  both 
acted  through  their  control  of  procedure. 

V.  THE  SYSTEM  OF  PRAETORIAN  EDICTS  AS  COMPARED 
WITH  ENGLISH  CASE  LAW. 

Now,  however,  we  arrive  at  a  material  difference  be- 
tween the  Roman  and  the  English  Magistrates.  The 
English  judge  never  goes  beyond  the  concrete  case 
which  is  before  him.  If  he  declares  the  law,  he  de- 
clares it  by  deciding  on  the  particular  question  which 
has  arisen  between  two  individuals.  He  may  incident- 
ally, if  so  minded,  deliver  a  lecture  on  the  law  bearing 
on  the  subject,  and  may  pass  in  review  all  the  cases 
cited  in  argument.  Still,  his  judgement  is  not  intended 
to  go  beyond  what  is  absolutely  necessary  for  the  settle- 
ment of  that  question,  and  his  view  of  the  law  is  not 
authoritative  so  far  as  it  strays  into  cognate  but  distinct 
topics.  It  is  only  the  ratio  decidendi  that  can  be  quoted 
as  an  authority.  No  dictum  thrown  out  incidentally  is 
of  binding  force;  and  those  who  in  the  future  have  to 
deal  with  his  decision  are  often  able  to  narrow  down 
the  ratio  decidendi  to  a  very  fine  point,  and  show  that  it 
turned  so  much  on  the  special  facts  of  the  case  as  to  be 
of  little  importance  as  a  precedent.  But  the  Praetor 
speaks  generally.  In  the  Edict  which  he  issues  at  the 
beginning  of  his  term  of  office  he  lays  down  a  rule,  in- 
tended from  the  first  to  be  applicable  to  a  large  class  of 
cases ;  or,  to  speak  more  exactly,  he  makes  a  promise 
and  announces  an  intention  of  dealing  with  a  large  class 
of  instances.  If  the  class  were  not  a  large  one,  he 
would  not  think  it  worth  while  to  announce  such  an  in- 
tention. He  is  thus  led  to  take  much  more  bold  and 


ROMAN  AND  ENGLISH  LEGISLATION  699 

conspicuous  steps,  and  he  may  effect  at  one  stroke  a 
larger  reform  than  any  single  decision  of  an  English 
Court  can  ever  cause.  He  is  far  more  distinctly  aware 
of  the  fact  that  he  is,  though  not  formally  legislating, 
yet  taking  action  which  may  have  the  effect  of  changing 
the  substance  of  the  law. 

In  other  respects  also,  the  fact  that  the  Praetor's 
changes  are  formally  enounced  in  his  Edict  potently 
and  beneficially  influenced  his  reforming  action.  He 
was  obliged  to  generalize  and  summarize.  Where  he 
had  to  set  aside  an  ancient  rule  which  had  begun  to 
be  mischievous  and  deserved  to  be  obsolete,  instead  of 
merely  nibbling  away  at  the  edges  of  it  as  our  English 
judges  were  apt  to  do,  he  dealt  with  it  in  a  broad  and 
intelligible  way,  either  superseding  it  altogether  or  lay- 
ing down  certain  marked  exceptions  in  which  he  de- 
clined to  follow  it.  When  he  was  establishing  a  new 
rule  he  had  to  consider  how  wide  a  field  he  desired  to 
cover,  what  sets  of  instances  were  to  be  provided  for, 
what  was  the  common  principle  underlying  those  in- 
stances, how  that  principle  must  be  expressed  so  as 
fairly  to  include  them  without  including  others  which 
he  had  no  wish  to  touch.  The  chief  merit  of  a  rule  of 
law  is  that  it  should  seize  a  feature  which  a  large  set  of 
instances  really  have  in  common,  and  should  effectually 
provide  for  them  and  for  them  only.  The  Praetor  was 
moreover  at  the  same  time  driven  to  be  terse  in  the 
formulation  of  his  promises,  because  the  Edict  was  by 
tradition  a  comparatively  short  document,  observing 
that  stern  brevity  which  the  famous  example  of  the 
Twelve  Tables  had  made  familiar  and  excellent  in 
Roman  eyes.  Thus  the  results  of  his  reforming  action, 
the  advance  made  at  each  step  in  the  development  of 
the  law,  were  always  presented  in  a  clear,  a  compre- 
hensive, and  above  all  a  concise  form,  so  that  the  pro- 
fession perceived  exactly  what  had  been  done,  were  able 
to  take  the  Edict  as  a  subject  for  commentary  and  eluci- 
dation, and  as  a  starting-point  for  further  improvements. 


700  ROMAN  AND  ENGLISH  LEGISLATION 

It  was  thus  that  the  jurists  treated  it,  seconding  while 
also  controlling  by  their  opinion  the  action  of  the  chief 
magistrate.  He  draws  with  a  bold  yet  careful  hand  the 
outlines  of  the  picture.  They  fill  in  the  details,  and  so 
work  round  and  over  each  of  his  summary  statements 
as  to  bring  out  more  fully  all  that  it  contained  and  in- 
volved, to  trace  his  principles  into  their  consequences 
and  to  illustrate  their  application.  The  action  of  the 
jurists  was  as  essential  to  him  as  he  was  to  them,  for 
while  their  advice  often  prompted  him,  and  while  their 
elucidations  and  teachings  developed  the  meaning  and 
contents  of  what  he  laid  down,  their  criticism  reprobated 
any  hasty  or  inconsequent  steps  into  which  zeal  or  self- 
confidence  might  betray  him.  Nor  did  such  criticism 
remain  fruitless.  For  it  will  be  remembered  as  another 
feature  of  the  Roman  edict-issuing  system,  and  indeed 
one  of  its  most  singular  features,  that  each  Edict  was 
issued  by  each  magistrate  for  his  one  year  of  office 
only,  and  had  no  validity  thereafter.  This  was  so  be- 
cause he  was  not  conceived  to  act  as  legislator,  but 
only  as  an  administrator  whose  commands,  though  they 
are  not  law  in  the  strict  sense,  must  be  obeyed  while 
his  power  lasts.  At  the  end  of  the  year  they  cease 
with  that  power,  but  his  incoming  successor  may  of 
course  repeat  them  and  give  them  another  year  of  life, 
and  so  on  from  year  to  year  and  from  generation  to 
generation. 

Thus  the  Edict,  so  far  as  it  can  be  called  legislation, 
is  tentative  legislation.  It  is  an  experiment  continually 
repeated ;  an  experiment  whose  failure  is  a  slight  evil, 
but  its  success  a  permanent  gain.  Suppose  the  Praetor 
Sempronius  to  have  introduced  a  new  sentence  into  his 
Edict,  promising  to  give  an  action  in  a  particular  set 
of  cases.  The  profession  doubt  the  merit  of  the  sen- 
tence, canvass  it,  observe  how  it  works,  and  before 
the  end  of  the  year  come  to  one  of  three  conclusions. 
They  may  approve  it,  in  which  case  it  will  doubtless 
be  repeated  in  next  year's  Edict.  They  may  think  it 


ROMAN  AND  ENGLISH  LEGISLATION  701 

fundamentally  wrong.  Or  thirdly,  they  may  hold  that 
though  its  object  was  good,  that  object  has  been  sought 
in  a  wrong  way.  See  then  what  happens  if  it  has  been 
disapproved.  Next  year  a  new  Praetor — Cornelius — 
comes  into  office.  In  issuing  his  Edict  he  either  omits 
altogether  the  obnoxious  addition  which  Sempronius 
had  made,  or  he  so  modifies  it  as  to  meet  the  objection 
which  the  jurists  have  taken.  There  is  here  none  of  the 
trouble,  difficulty,  and  delay  which  arise  when  a  statute 
has  to  be  passed  repealing  another  statute.  There  are 
not  even  those  difficulties  which  occur  under  our  Eng- 
lish system  when  a  case  wrongly  decided  has  to  be 
overruled. 

Observe  how  that  English  system  works.  A  decision 
is  given,  perhaps  hastily,  or  by  a  weak  Court,  which  in 
a  little  while,  especially  after  other  similar  cases  have 
arisen,  is  felt  by  the  bar  and  the  bench  to  be  unsound. 
There  is  a  general  wish  to  get  rid  of  it,  but  it  is  hard  to 
do  so.  People  have  begun  to  act  on  the  strength  of  it ; 
it  has  found  its  way  into  the  text-books ;  inferior  or  pos- 
sibly even  co-ordinate  courts  have  followed  it ;  convey- 
ances or  agreements  have  been  drawn  on  the  assumption 
that  it  is  good  law.  The  longer  it  stands  the  greater 
its  weight  becomes,  yet  the  plainer  may  its  unsoundness 
be.  Cautious  practitioners  fear  to  rely  on  it,  because 
they  think  it  may  someday  be  overruled,  yet  as  they 
cannot  tell  when  or  whether  that  will  happen,  they  dare 
not  disregard  it.  Thus  the  law  becomes  uncertain,  and 
not  only  uncertain,  but  also  needlessly  complex  and 
involved,  for  later  judges,  feeling  the  unsoundness  of 
the  principle  which  this  mischievous  case  has  estab- 
lished, endeavour  to  narrow  it  down  as  far  as  possible, 
and  surround  it  by  a  set  of  limitations  and  exceptions 
which  confuse  the  subject  and  perplex  the  student.  The 
matter  may  have  one  of  three  ultimate  issues.  Either 
lapse  of  time  and  the  unwilling  acquiescence  of  subse- 
quent judges  put  its  authority  beyond  dispute,  as  Mr. 
J.  W.  Smith  says  of  a  famous  old  instance,  '  The  pro- 


702  ROMAN  AND  ENGLISH  LEGISLATION 

fession  have  always  wondered  at  Dumpor's  case,  but 
it  is  now  too  firmly  settled  to  be  questioned  in  a  Court.' 
Or  else,  after  a  while,  the  point  is  carried  to  a  Court 
of  higher  rank  which  has  the  courage  to  overrule  the 
erroneous  decision,  and  resettle  the  law  on  a  better 
basis.  Or  possibly — though  this  but  rarely  occurs — a 
statute  is  passed  declaring  the  law  in  an  opposite  sense 
to  that  of  the  unlucky  decision.  But  it  may  be  long  be- 
fore the  second  solution  is  found,  partly  because  judges 
are  chary  of  disturbing  what  they  find,  holding  that  it  is 
better  that  the  law  should  be  certain  than  that  it  should 
be  rational,  and  fearing  to  pull  up  some  of  the  wheat 
of  good  cases  with  the  tares  of  a  bad  case,  partly  because 
it  may  be  a  good  while  before  a  litigant  appears  willing 
to  incur  the  expense  of  carrying  the  point  to  the  higher 
and  more  costly  tribunal.  The  third  solution  can  be 
even  less  relied  upon,  for  the  legislature  is  busy  and  cares 
very  little  about  the  theoretical  perfection  of  the  law. 

Even  when  the  bad  decision  has  been  got  rid  of,  a 
certain  measure  of  harm  is  found  to  have  been  done. 
The  authority  of  other  cognate  decisions  may  be  im- 
paired; transactions  entered  into,  or  titles  accepted,  on 
the  faith  of  the  case  are  shaken.  One  way  or  the  other 
the  law  is  injured.  But  on  the  Roman  system  these 
evils  were,  not  indeed  wholly,  yet  to  a  much  greater 
extent  avoided1.  Not  only  is  the  error  of  one  Praetor 
easily  corrected  by  his  successor,  but  the  occasion  re- 
curs year  by  year  on  which  it  must  be  either  corrected 
or  reaffirmed,  so  that  a  blemish  is  much  less  likely  to 
be  suffered  to  remain.  If  five  or  six  successive  Praetors 
have  each  of  them  in  their  Edicts  repeated  the  provision 
introduced  by  one  of  their  predecessors,  men  may  con- 
fidently assume  that  it  will  be  supported  and  perpetuated 
by  those  who  come  after,  either  in  its  original  form  or 
possibly  in  a  more  general  form  which  will  include  its 

1  A  particular  case  decided  in  a  particular  way  under  a  provision  of  the  Edict 
which  was  omitted  next  year  would  of  course  not  be  disturbed,  for  the  Romans  held 
firmly  to  the  principle  stare  iudicatis. 


ROMAN  AND  ENGLISH  LEGISLATION  703 

substance.  There  is  no  doubt  some  little  temporary  un- 
certainty during  the  first  year  or  two,  before  the  opinion 
of  the  profession  has  been  unequivocally  expressed. 
Such  uncertainty  can  hardly  be  avoided  in  any  system. 
But  the  fact  that  the  Edict  is  annual  gives  ample  no- 
tice that  the  provision  is  temporary  and  experimental, 
though,  of  course,  fully  valid  during  the  particular  year 
for  which  the  Edict  is  issued.  Thus  the  risk  of  mischief 
is  reduced  to  a  minimum. 

Our  data  are  too  scanty  to  permit  us  to  trace  either 
the  first  beginnings  of  the  Praetor's  action,  or  the  de- 
tails of  its  working,  or  the  changes  which  must  unques- 
tionably have  passed  upon  it  during  the  three  centuries 
and  a  half  when  its  importance  stood  highest,  say  from 
the  end  of  the  First  Punic  War  to  the  time  of  the  Em- 
peror Hadrian  (B.C.  241  to  117  A.D.).  Even  of  the  Edict 
itself,  in  its  latest  and  most  complete  form,  we  have 
only  fragments,  and  do  not  know  by  what  stages  it 
was  brought  to  the  perfection  which  led  to  its  being 
finally  settled  in  a  form  never  thenceforward  altered. 
This  took  place  under  Hadrian,  when  Salvius  Julianus, 
a  famous  jurist  who  was  Praetor  at  the  time,  gave  it  the 
shape  in  which  it  became  permanent,  an  Edictnm  Per- 
pctunm  in  a  new  sense;  it  was  then  enacted  by  a  S  emit  us 
Consultiun,  and  in  the  form  so  enacted  it  was  thereafter 
quoted  and  applied.  Apparently,  however,  the  effect  of 
its  enactment  was  not  to  make  it  a  part  of  the  general 
statutory  law,  but  only  to  determine  the  form  in  which 
it  was  thereafter  put  forth  by  the  magistrates.  After 
that  time  such  Edicts  as  were  issued  were  special,  con- 
taining declarations  of  the  imperial  will,  usually  ad- 
dressed to  particular  circumstances.  They  were  no 
longer  Edicts  in  the  old  sense,  but  mere  imperial 
constitutions. 

It  need  hardly  be  said  that  under  the  Empire  the 
action  of  the  Praetor,  like  that  of  all  other  magistrates, 
had  been  liable  to  be  directed  or  supervised  by  the 
Sovereign  or  his  legal  advisers.  An  interesting  illustra- 


704  ROMAN  AND  ENGLISH  LEGISLATION 

tion  of  that  supervision  is  worth  mentioning,  because 
it  also  brings  into  relief  the  fact  that  other  magistrates, 
as  well  as  the  Praetor  and  Aediles,  enjoyed  the  power  of 
creating  law  by  their  action,  which  may  be  called  either 
administrative  or  judicial,  seeing  that  it  united  the  two 
characters.  Before  the  time  of  Augustus  there  had  been 
no  such  thing  among  the  Romans  as  the  giving  of  an 
inheritance,  or  a  legacy,  by  means  of  a  Trust,  i.e.  by 
imposing  on  the  honour  and  good  faith  of  the  person 
to  whom  property  was  left  a  legal  obligation  to  hand 
it,  or  a  part  of  it,  over  to  some  one  else  as  the  real  bene- 
ficiary. The  practice  of  asking  such  a  person  to  carry 
out  the  testator's  wish  had  existed,  but  he  could  dis- 
regard the  wish  if  he  pleased.  Augustus,  however,  on 
two  occasions  directed  the  Consuls  (not  the  Praetor) 
to  enforce  such  a  request  by  their  authority,  thereby 
turning  the  moral  into  a  legal  obligation;  and  at  the 
same  time  recognized  an  informal  letter  or  writing  (codi- 
cilli)  as  sufficient,  where  confirmed  by  a  will,  to  impose 
a  binding  obligation  on  the  heir.  We  are  told  that,  in 
the  latter  case,  having  himself  on  one  occasion  performed 
what  a  testator  had  asked  him,  by  way  of  trust,  to  do, 
he  summoned  a  meeting  of  eminent  jurists  to  advise 
him,  and  accepted  the  advice  of  Trebatius  that  the  obli- 
gation should  be  held  valid.  These  instances  became 
the  foundation  of  the  extremely  important  changes 
which  made  the  validity  of  Trusts,  and  that  of  codicilli, 
thenceforward  a  well-established  legal  doctrine1.  As 
the  origin  of  Roman  trust  inheritances  is  due  to  the 
action  of  the  magistrates,  so  English  trusts  owe  their 
legal  force  to  the  Chancellor ;  and  through  the  operation 
of  the  practice  of  creating  them,  coupled  with  the  Sta- 
tute of  Uses  (27  Henry  VIII,  c.  10),  there  grew  up  the 
modern  system  of  conveyancing. 

1  '  Primus  divus  Augustus  semel  iterumque  gratia  personarum  motus,  vel  quia 
per  ipsius  salutem  rogatus  quis  diceretur  aut  ob  insignem  quorundam  perfidiam, 
iussit  consulibus  auctoritatem  suam  interponere,  quod  quia  iustum  videbatur  et 
populare  erat,  paulatim  conversum  est  in  adsiduam  iurisdictionem '  (Jnst.  ii.  23.  i). 
See  also  Inst.  ii.  25. 


ROMAN  AND  ENGLISH  LEGI8LATW\  7U5 

The  merits  of  our  English  Case  Law  system  are  very 
great.  It  is  an  abiding  honour  to  our  lawyers  and  judges 
to  have  worked  it  out  with  a  completeness  and  success 
unknown  to  any  other  country.  They  have  accumu- 
lated in  the  Reports  an  unequalled  treasure  of  instances, 
conjunctions  of  circumstances  raising  points  of  law  far 
more  numerous  than  the  most  active  intellects  could 
have  imagined.  These  points  have  been  argued  with 
the  keenness  which  personal  interest  supplies,  and  de- 
cided under  that  sense  of  responsibility  which  the  Judge 
feels  when  he  knows  not  only  that  his  judgement  is  to 
determine  the  pecuniary  claims  or  social  position  of 
suitors,  but  also  that  it  is  to  constitute  a  rule  which  will 
be  canvassed  by  the  bench  and  the  bar,  and  find  its  place 
in  volumes  that  will  be  studied  long  after  he  has  quitted 
this  mortal  scene.  There  is  therefore  a  practicality 
about  English  Case  Law,  a  firm  grasp  of  facts  and  re- 
ality, as  well  as  a  richness  and  variety,  which  cannot  be 
looked  for  in  legal  treatises  composed  even  by  the  ablest 
and  most  conscientious  private  persons,  who,  writing  in 
their  studies,  have  not  been  enlightened  by  forensic 
discussion  nor  felt  themselves  surrounded  by  the  halo 
of  official  dignity.  If  the  treatises  of  the  great  Roman 
jurists  do  to  a  large  extent  possess  these  same  merits, 
it  is  because  they  too  were,  in  a  measure,  public  officers, 
and  because  much  of  the  law  they  contain  arose  out  of 
concrete  cases  *. 

The  characteristic  defects  of  Case  Law  which  must 
be  set  against  these  merits  are  two.  There  is,  first  of 
all,  its  frequent  uncertainty.  As  has  been  remarked  al- 
ready, one  must  always  assume  a  certain  percentage  of 
ill-decided  cases  which  it  is  hard  to  get  rid  of.  And  it 
may  often  happen  that  a  particular  point,  which  spe- 
cially needs  to  be  determined  in  the  interests  of  legal 
science,  remains  for  years,  or  even  centuries,  unsettled, 

-  Not  that  all  the  cases  we  find  in  the  Digest  are.  concrete  cases,  for  a  good  many 
seem  to  have  been  imagined  for  the  sake  of  illustrating  the  applications  of  a  prin- 
ciple. Cf.  the  illustrations  in  Macaulay's  Indian  Penal  Code. 

45 


706  ROMAN  AND  ENGLISH  LEGISLATION 

because  it  is  never  brought  before  the  Courts  in  a  neat 
form  which  raises  just  the  issue  that  wants  settling. 
Sometimes  it  hardly  matters  which  way  the  decision 
goes :  the  important  thing  is  to  have  a  decision,  yet 
there  is  no  means  provided  of  getting  one,  unless  by 
invoking  the  legislature,  which  is  usually  too  much  oc- 
cupied with  political  controversies  or  administrative 
problems  to  care  for  settling  such  a  point.  And  sec- 
ondly there  is  the  utterly  unsystematic  character  from 
which  Case  Law  necessarily  suffers,  and  which  it  neces- 
sarily imparts  to  the  whole  law  of  the  country.  This 
defect  is  too  familiar  from  everyday  experience  to  need 
any  illustration.  It  is  the  capital  defect,  one  might  say 
almost  the  only  defect,  of  the  law  of  England ;  and  peo- 
ple have  so  long  talked  in  vain  about  remedying  it  by 
means  of  a  Code,  that  they  have  at  last  grown  tired  of 
the  subject,  and  seem  to  be  settling  down  into  despair. 
I  refer  to  it  for  the  sake  of  pointing  out  how  the  institu- 
tion of  the  Roman  Praetor  met  a  similar  danger.  The 
Romans  had,  to  be  sure,  no  great  turn  for  scientific 
arrangement — their  efforts  at  codification  and  the  struc- 
ture of  their  legal  treatises  show  that — but  the  Praetor's 
Edict  had  the  immense  advantage  of  presenting  all  the 
gist  and  pith  of  the  newer  law  in  a  compact  form,  clearly 
and  concisely  set  forth.  The  Edict  thus  became  a  centre 
round  which  the  jurists  could  work,  a  point  of  departure 
for  all  further  legislation,  a  main  line  of  road  running 
through  the  network  of  lanes,  courts,  and  alleys  that  had 
been  built  up  by  a  multitude  of  statutes  and  treatises. 
It  was  capable  of  being  constantly  amended  and  ex- 
tended so  as  to  take  in  all  changes  in  the  law,  while 
yet  retaining  its  own  character;  and  it  gave  a  unity,  a 
cohesion,  a  philosophical  self-consistency  to  the  Roman 
law  which  it  must  otherwise  have  wanted  even  more 
than  does  our  own.  A  German  writer  has  somewhere 
remarked,  in  commenting  on  the  crude  and  fragmentary 
character  of  the  Roman  Criminal  Law,  with  whose  de- 
velopment the  Praetor  had  comparatively  little  to  do, 


ROMAN  AND  ENGLISH    UWIBLATIOX  707 

that  the  faults  of  that  branch  of  legal  science  show  how 
absurd  it  is  to  ascribe  the  merits  of  Roman  jurisprudence 
to  any  special  gift  for  legislation  bestowed  by  Heaven 
on  the  Roman  people.  The  excellence  of  their  private 
civil  law  is  (he  observes)  due  simply  to  the  fact  that 
they  had  the  good  sense,  or  perhaps  the  good  luck,  to 
have  provided  in  the  Praetorship  an  office  specially 
charged  with  the  duty  of  constantly  amending  the  law 
so  as  to  bring  it  in  accord  with  the  growing  civilization 
and  enlarging  ideas  of  the  people.  There  is  much  truth 
in  this.  The  Romans,  however,  did  not  invent  their 
Praetor  with  any  such  conscious  purpose.  Their  merit 
was  that,  when  they  saw  him  occupied  in  developing  the 
law,  they  gave  him  free  scope,  and  supported  him  in 
his  beneficent  work.  He  is  a  unique  figure  among  the 
law-making  organs  of  the  nations.  Since  he  is  the  choice 
of  the  people,  he  is 'able  to  do  things  which  the  minister 
of  an  absolute  monarch  might  prudently  shrink  from 
doing;  and  the  people  permit  him  to  retain  his  func- 
tions, even  in  days  when  the  habit  of  directly  legislating 
had  so  much  increased  that  it  might  have  been  sup- 
posed that  legislation  would  restrict  or  supersede  his 
action.  No  modern  republic  would  vest  such  power  in 
an  official,  nor  would  any  modern  monarch  be  permitted 
by  public  opinion  so  to  vest  it. 

Nevertheless,  though  he  belongs  to  a  world  which 
cannot  return,  the  Praetor's  career  may  suggest  to  us 
that  every  civilized  nation  ought,  in  some  way  or  other, 
to  provide  an  organ  representing  its  legal  intelligence 
which  shall  mould  and  supervise  the  gradual  and  sym- 
metrical development  of  its  law.  It  may  be  suggested 
that  all  modern  States  do  provide  such  an  organ  in 
their  legislatures,  whose  business  is  largely,  in  some 
instances  almost  entirely,  that  of  making  law,  and  which 
presumably  contain  the  most  capable  men  whom  the 
nation  possesses.  When  we  have  considered  the  condi- 
tions under  which  legislatures  work,  as  I  propose  now 
to  do,  we  shall  be  better  able  to  judge  how  far  they 


708  ROMAN  AND  ENGLISH  LEGISLATION 

fulfil    the    function   which    the    Praetor    discharged    at 
Rome. 

VI.    DIRECT  LEGISLATION  AT  ROME. 
A.    The  Popular  Assembly. 

We  have  now  compared  the  organs  and  the  methods 
of  legislation  which  existed  in  the  Roman  Republic  and 
Empire  with  those  of  England,  so  far  as  relates  to  the 
action  of  the  jurists,  magistrates,  and  judges.  Taking 
first  the  Roman  jurisconsults  and  authors  of  legal  trea- 
tises, it  was  suggested  that  their  English  analogues  were 
rather  to  be  found  not  so  much  in  text-writers  as  in  the 
judges,  the  result  of  whose  labours  is  preserved  in  the 
vast  storehouse  of  the  Reports;  while  in  considering 
the  action  of  the  Roman  Magistrates,  especially  of  the 
Praetor,  in  the  creation  of  law,  stress  was  laid  on  the 
advantages  which  the  peculiar  position  of  this  great  head 
of  the  whole  judicial  system  presented  for  the  gradual 
and  harmonious  development  of  legal  rules,  an  advan- 
tage which  the  disconnexion  of  the  Chancellor  from  the 
Common  Law  Courts  did  not  permit  in  England.  This 
led  to  an  examination  of  the  English  method  of  develop- 
ing and  amending  of  the  law  by  the  decisions  of  the 
Courts,  a  method  which,  if  it  loses  something  in  point 
of  symmetry,  has  the  advantage  of  providing  an  un- 
rivalled abundance  of  materials  for  the  determination 
of  every  question  that  can  arise,  and  of  subjecting 
each  disputable  point  to  the  test  of  close  and  acute 
scrutiny. 

We  may  now  go  on  to  examine  another  mode  of 
creating  law,  that  namely  which  proceeds  immediately 
from  the  supreme  power  in  the  State,  and  which  may, 
as  contrasted  with  the  indirect  creation  of  law  by  jurists, 
or  magistrates,  be  called  Direct  Legislation. 

The  organ  of  such  direct  legislation  is  the  supreme 
authority  in  the  State,  whether  such  authority  be  a  Per- 
son or  a  Body,  whether  such  body  be  the  council  of  an 


ROMAN  AND  ENGLISH  LEGISLATION  709 

oligarchy  or  a  popular  assembly,  and  whether  such  popu- 
lar assembly  be  primary  or  representative. 

The  method  whereby  Direct  Legislation  is  enacted 
is  the  public  proclamation  (usually,  and  now  invariably, 
but  of  course  not  necessarily)  in  writing  by  the  Su- 
preme Authority,  of  its  will  as  intended  to  bind  the  citi- 
zens and  guide  their  action.  And  the  result  is  what  we 
call  Statute  Law  as  opposed  to  Common  Law.  The 
distinction  is  a  familiar  one  to  both  nations.  The  later 
Romans  contrast  Ins  and  Lex 1 :  we  contrast  Common 
Law  and  Statute. 

Let  us  first  inquire  what  were,  at  different  periods  in 
the  long  annals  of  the  Roman  State,  its  various  organs 
of  direct  legislation,  and  how  each  of  them  worked.  It 
is  of  course  only  in  outline  that  so  large  a  subject  can  be 
treated. 

The  Roman  State  lasted  2,206  years — from  the  un- 
authenticated  '  founding  of  the  city  '  (for  which  I  as- 
sume the  traditional  date  of  B.C.  753)  down  to  the  well 
authenticated  capture  of  Constantinople  by  the  Turks 
in  A.D.  1453.  Some  would  carry  it  down  to  1806  and 
thus  give  it  a  life  of  2,559  years,  but  the  feudal  Romano- 
Germanic  Empire  is  such  a  totally  different  thing  in 
substance  from  the  Empire  at  Rome  or  at  Constanti- 
nople, that  although  its  sovereigns  often  claimed  to 
legislate  after  the  manner  of  Constantine  and  Justinian, 
nothing  would  be  gained  by  bringing  it  and  them  within 
the  scope  of  our  inquiry.  Now  during  this  long  period 
of  two  and  twenty  centuries,  from  Romulus  to  Constan- 
tine the  Sixteenth,  three  such  organs  were  successively 
developed.  The  first  was  the  popular  assembly  of  the 
citizens ;  the  second,  the  administrative  council  of  mag- 
nates and  ex-officials ;  the  third,  the  autocratic  monarch. 
The  first  co-existed  for  a  certain  time  with  the  second, 
the  second  with  the  third.  The  rights  of  the  first  and 

1  By  the  time  of  Justinian  the  distinction  had  come  to  be  between  lus  as  the  old 
Law,  including  republican  statutes,  Senatus  consulta,  the  Edicts  of  magistrates 
and  the  writings  of  the  jurists,  and  the  new  Law,  which  consisted  of  imperial  or- 
dinances, and  was  galled  sometimes  lus  Novum^  sometimes  Leges, 


710  ROMAN  AND  ENGLISH  LEGISLATION 

the  second  seem  to  have  never  been  formally  extin- 
guished, even  when  the  third  had  become  in  practice  the 
sole  source  of  law.  Still  we  may,  with  substantial  accu- 
racy, limit  the  action  of  the  first  to  the  republican  period, 
that  of  the  second  (so  far  as  properly  legislative)  to  the 
earlier  two  centuries  of  the  imperial  monarchy,  while  in 
later  ages  the  third  alone  need  be  regarded. 

As  I  am  not  drawing  a  historical  sketch,  but  merely 
attempting  to  point  out  how  each  organ  acted  in  pro- 
ducing law,  I  shall  not  stop  to  discuss  any  constitutional 
questions  as  to  the  rights  or  powers  at  various  times  of 
these  organs  respectively,  but  shall  assume  each  to  have 
been  in  its  own  day  duly  recognized  as  competent  to 
legislate.  That  is  the  view  presented  to  us  by  Gaius 
(writing  in  the  second  century  A.D.)  and  in  the  Digest  and 
Institutes  of  Justinian  enacted  in  the  sixth  century  A.D. 
The  Emperor  says,  '  The  written  law  consists  of  sta- 
tutes, resolutions  of  the  plebs,  decrees  of  the  Senate,  the 
ordinances  of  emperors,  the  edicts  of  magistrates,  the 
answers  of  jurisconsults  V  We  have  already  considered 
the  two  latter,  and  have  now  the  four  former  kinds  of 
legislation  to  examine,  all  of  which  may  be  called,  in  a 
wide  sense  of  the  term,  Statutes,  i.e.  declarations  of  the 
will  of  the  State  formally  promulgated  as  law. 

The  legislative  power  of  the  Roman  people  was  ex- 
ercised, during  the  Republic,  through  three  assemblies, 
those  of  the  curies  (this  soon  lost  all  practical  import- 
ance), the  centuries,  and  the  tribes.  Passing  by  the  in- 
teresting and  difficult  questions  as  to  the  composition 
of  these  bodies,  their  respective  functions,  and  the  time 
when  each  may  be  said  to  have  acquired  or  lost  its 
authority,  we  may  remark  several  features  which  they 
had  in  common,  and  which  impressed  a  peculiar  cha- 
racter on  the  laws  that  emanated  from  them.  The  differ- 
ences between  them  do  not  affect  the  points  to  which  I 

1  *  Scriptum  ius  est  lex,  plebiscita,  senatus  consulta,  principum  placita,  magi- 
stratuum  edicta,  responsa  prudentum.  Lex  est  quod  populus  Romanus  senatorio 
magistratu  interrogante,  veluti  consule,  constituebat :  plebiscitum  est  quod  plebs 
plebeio  magistratu  interrogante,  veluti  tribune,  constituebat '  (Inst.  i.  2.  3,  4). 


ROMAN  AND  ENGLISH  LEGISLATION  711 

am  going  to  call  attention.  All  these  comitia  (literally, 
meetings)  are  Primary  assemblies,  that  is  to  say,  they 
are  not  representative  bodies,  but  consist  of  the  whole 
body  of  citizens,  just  like  a  Homeric  dyopa,  an  Athenian 
or  Syracusan  CKKA^O-UX,  a  Prankish  mallum,  an  Old  Eng- 
lish Gemot,  an  English  seventeenth-century  Vestry, 
a  New  England  Town  Meeting,  an  English  Parish 
Meeting  under  the  Local  Government  Act  of  1894,  an 
Icelandic  Thing,  a  Basuto  Pitso.  The  Roman  assem- 
blies are,  therefore,  large  bodies  consisting  of  thou- 
sands, often  many  thousands,  of  persons,  and  fluctu- 
ating bodies,  in  which  not  always  the  same  persons  will 
be  present,  and  in  which  those  who  live  near  the  place 
of  meeting  will  tend  to  preponderate.  Further,  they 
are — and  this  is  a  remarkable  feature  of  the  Roman 
system — bodies  composed  of  minor  bodies,  and  deter- 
mining their  decision  by  a  system  of  double  voting. 
Each  individual  votes  in  the  group  to  which  he  belongs, 
curia,  ccnturia,  or  tribus,  as  the  case  may  be ;  and  it  is  by 
the  majority  of  curies,  centuries,  or  tribes  that  the  de- 
cision of  the  assembly  as  a  whole  is  given,  the  collective 
voice  of  each  of  these  groups  being  reckoned  as  one 
vote,  and  a  small  group  having  as  much  weight  as  a 
large  one.  Thus  there  may  be  a  majority  of  group  votes 
for  a  proposition  while  the  majority  of  votes  of  indi- 
viduals is  against  it.  This  mode  of  voting,  unfamiliar  to 
modern  political  constitutions,  survives  in  the  Rectorial 
elections  of  two  (Glasgow  and  Aberdeen)  of  the  four 
Scottish  Universities,  where  the  students  vote  by  '  na- 
tions ' ;  and  it  has  sometimes  happened  that  a  person  is 
on  this  method  chosen  to  be  Lord  Rector  against  whom 
a  majority  of  the  votes  given  by  the  individual  electors 
has  been  recorded1.  So  under  the  Constitution  of  the 
United  States,  when  no  candidate  for  President  has  re- 
ceived a  majority  of  the  votes  given,  the  House  of  Repre- 
sentatives chooses  one  of  the  five  candidates  who  has 
received  most  votes,  and  in  doing  so  the  House  votes 

»  See  52  &  53  Viet.  c.  55,  §  14,  subs.  4. 


712  ROMAN  AND  ENGLISH  LEGISLATION 

by  States,  i.e.  the  majority  of  the  Representatives  from 
each  State  determine  the  vote  of  that  State,  and  the 
majority  of  States  (not  of  individual  Representatives) 
prevails.  Thirdly,  these  assemblies  can  be  convoked 
and  presided  over  only  by  a  Magistrate,  and  their  action 
may  be  stopped  by  another  Magistrate.  Fourthly,  no 
discussion  takes  place  in  them.  They  meet  only  to  vote 
on  propositions  submitted  by  the  presiding  Magistrate, 
who  alone  speaks,  and  who  speaks  only  to  put  the  ques- 
tion. Fifthly,  they  vote  once  only,  and  that  vote  is 
final  and  supreme,  requiring  no  assent  of  or  confirma- 
tion by  any  other  body,  but  operating  directly  to  create 
a  rule  binding  all  members  or  subjects  of  the  State. 

Such  a  machinery  seems  almost  as  if  calculated  either 
to  check  legislation  by  throwing  obstacles  in  its  way, 
or  else  to  make  legislation  hasty  and  imprudent.  The 
passing  of  a  long  measure  or  a  complex  measure  might 
be  thought  scarcely  possible  under  it ;  while  at  the  same 
time  it  secures  no  opportunities  for  criticism  and  re- 
vision, and  for  the  reconsideration  at  a  future  stage  of 
decisions  too  hastily  taken  when  the  measure  was  first 
submitted.  Thus  there  would  appear  to  be  a  double 
danger  involved  in  such  a  system,  the  danger  of  not 
moving  at  all,  and  the  danger,  when  the  people  do  move, 
of  going  too  fast  and  too  far.  It  must  be  remembered, 
however,  that  not  very  much  direct  legislation  was 
needed.  The  improvement  of  ordinary  private  law  was 
for  the  most  part  left  to  the  Praetor  and  the  jurists, 
while  one  great  branch  of  modern  legislation  lay  almost 
untouched  during  the  Roman  Republic,  that  of  the  regu- 
lation of  powers  and  functions  of  administrative  depart- 
ments. There  was  comparatively  little  general  admini- 
strative law  in  our  modern  sense  in  Italy,  because  in 
Rome  the  magistrates  and  Senate  had  a  pretty  wide  dis- 
cretion, and  through  the  rest  of  Italy  the  local  communi- 
ties managed  their  own  affairs.  So  too  in  the  provinces 
administration  was  left  either  to  the  local  municipalities 
or  to  the  Roman  governors,  proconsuls,  or  propraetors. 


KOMA\   .1  \/>   ENGLISH  LEGISLATION  713 

Even  if  the  method  of  legislating  which  these  assem- 
blies followed  be  deemed  ill  fitted  to  secure  that  the 
merits  of  any  change  in  the  substance  of  the  law  should 
be  carefully  weighed,  it  need  not  have  been  equally  de- 
ficient in  making  it  excellent  in  point  of  form,  i.e.  clear, 
consistent,  symmetrical.  In  this  respect  the  absence  of 
means  for  discussion  and  amendment  may  have  worked 
for  good.  Statutes  enacted  in  the  form  in  which  they 
have  been  originally  proposed  are  more  likely  to  be 
plain  and  simple  than  those  which  have  been  cut  about, 
pared  down,  and  added  to  by  the  action  of  some  revising 
Committee  or  of  a  Second  Chamber,  probably  dissimilar 
in  opinion  from  the  First  Chamber,  possibly  disposed 
to  differ  for  the  sake  of  differing.  The  volume  of  direct 
legislation  may,  under  a  system  like  that  of  Rome,  be 
comparatively  small.  But  the  fewer  changes  in  the  law 
are  made  by  statute  so  much  the  better  for  the  harmoni- 
ous development  and  inner  consistency  of  the  whole  body 
of  law,  which  suffers  far  less  often  from  permitting  the 
survival  of  an  occasional  anomaly  or  absurdity  than 
from  frequent  tinkering,  that  is  to  say,  from  the  intro- 
duction of  exceptions  to  general  rules,  or  the  multiply- 
ing of  provisions  for  special  cases.  So  far,  therefore,  as 
quantity  is  concerned,  the  small  amount  of  legislative 
work  which  the  Roman  comitia  turned  out  was  a  matter 
for  satisfaction,  not  for  regret. 

As  respects  the  quality  of  that  work,  the  character  of 
the  Assembly  produced  some  remarkable  consequences. 
That  it  might  be  understood  and  approved  by  the  ordi- 
nary citizens,  the  bill  proposed  must  be  comparatively 
short,  terse,  clear.  In  many  cases  it  would  have  been 
previously  discussed  at  public  meetings,  which  the  magi- 
strate could  summon;  but  those  who  would  attend  the 
meetings  might  be  but  a  small  proportion  of  those 
called  upon  to  vote  in  the  comitia.  As  it  could  not  be 
amended  by  the  Assembly,  and  would  reflect  credit  or 
discredit  on  the  name  of  the  proposing  Magistrate  who 
was  responsible  for  it,  it  must  be  prepared  with  scrupu- 


714  ROMAN  AND  ENGLISH  LEGISLATION 

lous  care.  As  it  would  become  operative  immediately 
on  its  being  approved  by  the  single  vote  of  the  Assembly, 
with  no  opportunity  of  correcting  it  at  any  later  stage 
or  in  any  other  legislative  body,  an  error  would  be  seri- 
ous to  the  community,  and  specially  damaging  to  the 
proposer.  Moreover,  as  it  could  not  be  amended  in 
the  Assembly,  it  escaped  all  risk  of  having  its  drafting 
spoiled  and  of  losing  what  original  merits  of  breadth, 
lucidity,  logical  arrangement,  and  conciseness  of  expres- 
sion it  might  possess.  No  one  could  move  to  add  or 
to  omit  a  clause.  No  large  principle  could  be  qualified 
by  the  insertion  of  limiting  words.  No  savings  for 
particular  cases  could  be  suggested,  and  possibly  ac- 
cepted in  order  to  buy  off  opposition.  '  Yes  '  or  '  No  ' 
to  the  whole  bill — these  were  the  only  alternatives.  And 
the  simpler  the  bill,  so  much  more  probable  the  '  Yes  ' ; 
whereas  in  assemblies  with  power  to  amend,  a  '  Yes  ' 
has  to  be  purchased  by  compromises  and  concessions, 
which,  whatever  effect  they  may  have  on  the  substance 
of  a  measure,  destroy  the  elegance  of  its  form.  The 
statutes  passed  by  the  Roman  people  had,  therefore, 
owing  to  these  causes,  three  great  merits.  There  were 
few  of  them.  They  were  brief.  They  were  clear.  We 
possess  fragments,  in  some  cases  pretty  large  fragments, 
of  a  good  many;  and  in  all  the  drafting  is  excellent.  The 
sharp,  stern,  almost  grim  conciseness  and  precision  of 
the  Twelve  Tables  seem  to  have  been  always  present 
to  the  mind  of  the  Roman  draftsman  as  the  model  he 
ought  to  follow. 

It  is  worth  remarking  that  the  earliest  Roman  con- 
ception of  a  Lex  or  Statute  was  different  from  that  which 
we  find  in  the  imperial  period,  as  well  as  from  that  which 
any  modern  jurist  would  naturally  form.  The  word  lex 
meant  in  early  Latin  simply  a  set  form  of  words;  and 
when  applied  to  an  enactment  by  the  comitia,  it  de- 
scribed, not  a  special  kind  of  legal  rule,  but  merely  the 
expression  of  the  people's  will  in  set  terms.  And  the 
original  conception  of  a  statutory  enactment  was  that  of 


ROMAN  AND  ENGLISH  LEGISLATION  715 

a  contract  made  between  the  Citizens  in  the  comitia  and 
the  Magistrate  representing  the  Corporate  State.  Hence 
the  definition  of  Lex  which  we  find  given  by  Papinian 
(Dig.  i.  3.  i),  '  the  common  covenant  of  the  republic  ' 
(commnnis  rcipublicac  sponsio),  probably  descends  from 
the  old  practice  according  to  which  the  Consul  or  other 
presiding  Magistrate  asked  (rogavit)  the  comitia  whether 
such  and  such  was  their  wish,  submitting  to  them  the 
form  of  words  whereby  they  were  to  agree  to  bind 
themselves.  Just  as  in  the  Roman  stipulatio  the  ques- 
tioner asks  the  promiser  whether  he  promises  to  do 
such  and  such  a  thing,  to  which  the  latter  answers, 
'  I  promise  '  (spondco) ;  so  the  Consul  asks  the  Quirites 
whether  they  wish  and  order  that  such  and  such  a  thing 
shall  be  done  (Vclitis,  iubcatis,  Quirites?) t  whereto  the 
citizens  answer,  '  Be  it  as  you  ask '  (Uti  rogas).  Thus 
the  first  (or  at  any  rate  a  very  early)  form  in  which  the 
notion  of  a  formally  enacted,  as  distinct  from  that  of  a 
Customary,  Law  emerges  in  Rome  is  that  of  a  Contract. 
The  Romans  were  like  the  English  in  this,  that  they 
seldom  did  anything  formally  till  it  had  for  a  great  while 
been  done  practically.  Long  after  the  power  of  legisla- 
tion had  passed  in  substance  from  the  king  of  England 
to  his  subjects  represented  in  his  Great  Council,  the 
forms  of  the  Constitution  continued  to  suggest  that  the 
monarch  was  still  the  prime  agent  in  legislation.  To-day 
the  so-called  Royal  Veto,  which  ought  rather  to  be  called 
the  right  of  the  Crown  to  take  further  time  to  consider 
the  resolutions  of  the  two  Houses,  subsists  in  theory  un- 
impaired, though  it  has  not  been  exercised  since  1707. 
So  when  actual  power  passed  from  the  comitia  to  the 
Imperator  in  the  days  after  Julius  Caesar  and  Augustus, 
the  rights  and  functions  of  the  Assembly  were  not  for- 
mally extinguished.  Magistrates  continued  to  be  elected 
by  the  comitia  till  the  accession  of  Tiberius,  and  the  right 
of  legislation  remained  for  a  great  while  afterwards  le- 
gally vested  in  them.  Statutes  appear  to  have  been 
passed  by  them  as  late  as  the  time  of  Nerva.  The  comitia 


716  ROMAN  AND  ENGLISH  LEGISLATION 

themselves  died  out  by  obsolescence,  without  being  ever 
formally  abolished,  and  apparently  they  went  on  meet- 
ing occasionally  in  a  purely  formal  way  long  after  they 
had  ceased  to  be  a  reality,  just  as  the  name  Rcspublica 
Romana  survived  in  documents  and  inscriptions  when 
the  old  associations  it  evoked  had  been  forgotten1. 
And  the  popular  assemblies  died  out  all  the  more  quietly 
because  they  had  never  met  of  themselves,  by  simple 
operation  of  law.  Like  the  English  Parliament,  but  un- 
like the  American  Congress  and  the  Chambers  of  some 
European  countries,  they  needed  to  be  convoked  by  the 
Executive  2. 

VII.  DIRECT  LEGISLATION  AT  ROME. 
B.    The  Senate. 

When  legislation  by  these  assemblies  ceased  the  turn 
of  the  Senate  came.  This  body,  a  Council  of  Elders  as 
old  as  Rome  itself,  perhaps  in  its  original  form  corre- 
sponding to  the  Council  which  surrounded  the  Homeric 
king,  seems  to  have  claimed,  even  during  the  Republic, 
the  right  of  general  legislation,  a  right  which  the  popular 
party  denied,  and  which  was  probably  not  well  founded 
in  law,  although  its  undoubted  competence  to  issue  ad- 
ministrative decrees  for  temporary  purposes  made  the 
claim  plausible,  and  raised  many  questions  of  delicacy 
and  difficulty  regarding  the  exact  limits  of  its  power. 
Moreover  the  Senate,  whose  proper  function  was  to  ad- 
vise the  magistrates,  came  to  have  a  sort  of  ill-defined 
authority  over  them,  and  they  often  found  it  prudent  to 
shelter  themselves  under  that  authority;  so  sometimes 

1  I  saw  a  few  years  ago,  in  the  ruins  of  Salona  in  Dalmatia,  a  lately  uncovered 
inscription,  dating  apparently  from  the  sixth  or  seventh  century  A.D.,  in  which  the 
protection  of  God  is  asked  for  the  '  respublica  Romana.'    It  need  hardly  be  said 
that  the  term  has  in  strictness  nothing  to  do  with  the  form  of  government,  no  more 
than  has  our  English  term  '  Commonwealth.' 

2  The  Crown  is  now  in  England  bound  by  statute  to  summon  Parliament,  but 
should  the  Crown  omit  to  do  so,  Parliament  could  not  legally  meet  of  itself,  save 
that  upon  the  demise  of  the  Crown  it  does  forthwith  come  together  to  swear  alle- 
giance to  the  new  Sovereign. 


ROMAN  AND  ENGLISH  LEGISLATION  717 

a  resolution  directing  a  magistrate  to  take  such  and  such 
a  course  might  be  quoted  as  possessing  legal  validity, 
especially  if  the  course  was  one  which  lay  within  the 
scope  of  his  official  discretion.  The  whole  subject  was 
full  of  uncertainty,  and  a  controversy  seems  to  have 
gone  on  among  constitutional  lawyers  regarding  the 
Senate's  powers,  similar  to  that  which  long  raged  in 
England  over  the  so-called  dispensing  power  of  the 
Crown1.  When  the  comitia  ceased  to  be  convoked,  ex- 
cept occasionally  as  a  matter  of  form  to  give  effect  to 
the  monarch's  will,  it  was  natural  that  the  legislative 
functions  of  the  Senate  should  win  full  recognition,  for 
they  furnished  exactly  the  method  of  legislation  which 
the  Emperors  desired.  As  the  Roman  State  remained 
a  republican  commonwealth  in  theory  and  in  strict  in- 
tendment  of  law  long  after  it  had  passed  under  the  sway 
of  a  monarch,  and  as  it  was  the  object  of  the  monarch 
to  keep  up  this  theory,  he  found  it  easy  and  safe  to  act 
through  the  Senate,  which  (though  absolutely  obedient 
to  him)  still  wore  the  air  of  an  independent  body,  rather 
than  in  his  own  person,  ample  as  was  the  magisterial 
authority  wherewith  he  was  clothed.  Thus  the  Senate 
at  the  same  moment  acquired  power  and  lost  it.  It  be- 
came recognized  as  entitled  to  make  law,  but  it  found 
itself  the  mere  instrument  of  the  Emperor  for  that  pur- 
pose. From  the  time  of  Tiberius  down  to  that  of  Ha- 
drian, many  laws  were  passed  by  the  Senate ;  and  though 
its  action  became  thenceforward  less  frequent  and  less 
important,  its  rights  lasted  as  long  as  it  lasted  itself, 
that  is  to  say,  till  it  died  out  in  the  disorder  of  the  seventh 
century.  They  are  referred  to  by  Justinian  as  if  still 
existing,  but  we  do  not  hear  of  any  practical  use  made 
of  them  in  his  time.  One  of  the  latest  measures  ascribed 
to  the  Senate  is,  oddly  enough,  a  decree  for  regulating 
the  election  of  Popes,  and  preventing  tumults  thereat. 

1  This  is  illustrated,  by  the  words  of  Gaius, '  Senatus  consultum  legis  vicem  obtinet 
quamvis  fuerit  quaesit".m '  (Gai.  Inst.  i.  4).  Ulpian  however  says,  '  Non  ambigitur 
senatum  ius  facer  c  posse '  (Dig:  i.  3.  9).  It  too  exerted  a  sort  of  dispensing  power : 
cf.  Sallust,  Cat.  29. 


718  ROMAN  AND  ENGLISH  LEGISLATION 

The  Senate  was  in  most  respects  much  better  fitted 
for  legislative  work  than  the  popular  assemblies  had 
been,  indeed  than  most  assemblies  have  been  in  any 
country.  It  was  composed  of  men  of  mature  age,  versed 
in  affairs,  many  of  them  having  filled  high  office,  others 
having  served  as  judicial  referees,  if  we  may  so  render 
the  term  iudices;  all  therefore,  or  nearly  all,  possessing 
some  knowledge,  and  many  a  large  knowledge,  of  law 
and  of  administration.  It  was  large  enough  to  comprise 
persons  of  very  varied  experience,  while  small  enough 
(in  normal  times)  to  be  business-like,  and  to  avoid  the 
danger  of  degenerating  into  a  mob1.  Like  the  comitia, 
it  voted  only  once  on  a  proposition,  and  that  one  vote 
was  sufficient  to  pass  a  law.  Again  like  the  comitia,  it 
could  only  deal  with  what  the  magistrate  brought  be- 
fore it,  private  members  having  no  initiative.  But,  un- 
like the  comitia,  it  could  debate  a  proposition  and  make 
amendments  thereto;  that  is  to  say,  when  a  particular 
draft  measure  was  submitted,  it  was  able,  being  thereby 
seized  of  the  matter,  to  reject  the  proposition  as  drafted, 
and  to  pass  one  containing  different  provisions.  There 
does  not  seem  to  have  been  anything  analogous  to  our 
English  system  of  going  into  Committee,  and  afterwards 
making  a  report  to  the  House ;  but,  as  the  decrees  sub- 
mitted were  short  and  simple  compared  to  those  which 
the  British  legislature  deals  with,  the  method  of  amend- 
ing the  proposal  submitted,  or  debating  and  passing  an 
alternative  proposal,  was  doubtless  sufficient  for  the 
needs  of  the  case.  What  was  lacking  to  the  Senate  was 
not  machinery,  but  force.  It  was  a  tool  in  the  hands  of 
the  Emperor,  and  was  used  by  him  as  a  means  of  for- 
mally enacting  and  promulgating  measures  on  which  he 
had  already  decided.  His  influence  soon  came  to  be 

1  Though  Augustus  found  over  a  thousand  members  in  it,  many  of  them  un- 
worthy, and  was  obliged  to  purge  it  carefully  down  to  a  reasonable  strength 
(Sueton.  Octav.  35).  Whether  there  were  senators  with  no  legal  right  to  speak  but 
only  to  vote — they  voted,  as  in  the  English  Parliament,  by  dividing  into  two  bodies 
— is  matter  of  controversy.  There  was  no  closure,  so  senators  used  to  talk  against 
time. 


ROMAN  AND  ENGLISH  LEGISLATION  719 

so  fully  recognized  that  the  later  lawyers  sometimes 
cite  not  the  Scnatits  consiiltum  itself,  but  the  speech 
(pratio)  in  which  the  Emperor  proposed  it  to  the 
Senate,  although  in  these  cases  the  legal  validity 
of  the  law  seems  to  be  attributed  to  the  vote  of  the 
Senate.  After  Hadrian  it  would  appear  that  legisla- 
tive decrees  were  always  passed  at  the  instance  of  the 
monarch. 

Under  an  indulgent  Emperor,  and  in  matters  of  ordi- 
nary private  law,  there  might  of  course  be  no  great 
reason  why  amendments  should  not  be  suggested  or 
even  opposition  made,  by  an  active  senator,  to  bills  pro- 
posed by  the  presiding  magistrate,  although  the  magi- 
strate himself  was  usually  merely  the  mouthpiece  of  the 
monarch.  But  the  habit  of  servility  grew  so  fast,  that 
even  this  remnant  of  independence  seems  to  have  soon 
become  rare.  Nothing  was  so  dangerous  as  to  give 
offence  to  a  sovereign  whose  power  was  restrained  only 
by  his  good  nature. 

The  checks  which  have  been  noted  as  existing  in  the 
case  of  the  comitia  on  prolixity  or  obscurity  in  the  terms 
of  a  statute,  were  absent  in  the  case  of  the  Senate.  Yet 
the  good  habits  formed  in  earlier  centuries  were  not  lost. 
The  Scnatus  consulta  which  remain  to  us  are  favourably 
distinguished  by  their  clearness  and  brevity.  The  ease 
with  which  they  could  be  passed,  or  repealed  when 
passed,  does  not  appear  to  have  led  to  their  being  drawn 
carelessly  as  regards  either  substance  or  form.  It  may 
however  be  remarked  that  having  been  originally  not  so 
much  laws  as  resolutions  of  a  body  primarily  ad- 
visory, intended  to  express  its  opinion,  and  to  guide  or 
strengthen  the  hands  of  an  executive  magistrate,  they 
continued  to  be  couched  in  language  hardly  so  techni- 
cal as  that  of  the  old  leges.  They  are  less  imperative  in 
form,  and  often  express  quite  as  much  in  their  preamble, 
which  contains  the  motives  that  have  suggested  the 
decree,  as  through  the  more  strictly  enacting  part.  Oc- 
casionally they  approach  dangerously  near,  as  preambles 


720  ROMAN  AND  ENGLISH  LEGISLATION 

are  apt  to  do,  to  becoming  rhetorical  declarations  of 
policy. 

The  Senatus  consulta  actually  preserved,  or  known  to 
us  by  name,  are  less  numerous  than  might  have  been 
expected.  The  same  may  be  said  of  the  leges >  or  rather 
of  such  among  them  as  were  of  general  and  permanent 
effect,  not  mere  acts  of  an  executive  nature.  If  we  could 
suppose  that  the  legislative  activity  of  the  Roman  State 
had  manifested  itself  only  through  leges  and  Senatus 
consulta,  it  would  be  hard  to  understand  how  that  State, 
developing  as  it  did,  could  have  got  on  and  attained  its 
amazing  development  in  wealth  and  population  with  so 
few  legislative  changes.  The  explanation,  of  course,  is 
that  the  Praetor  and  the  jurists  were  doing  the  main 
part  of  the  work,  just  as  during  the  eighteenth  century 
in  England  the  judges  and  text-writers  were  steadily 
developing  our  private  law,  which  was  but  little  altered 
by  statute  through  the  whole  of  that  century.  During 
the  later  Republic  and  the  earlier  Empire  direct  legis- 
lation was  (speaking  generally)  resorted  to  either  to 
abolish  some  deeply  rooted  rule  or  else  to  establish  some 
new  departure,  which  a  magistrate  hesitated  to  under- 
take on  his  own  responsibility. 


VIII.    DIRECT  LEGISLATION  AT  ROME. 
C.    The  Emperor. 

The  third  and  last  form  of  direct  Roman  legislation  is 
that  of  imperial  ordinance.  In  one  aspect  it  is  the  most 
important  form,  because  nearly  all  the  law  of  statutory 
origin  which  has  come  down  to  us  was  enacted  by  the 
Emperors,  the  number  of  leges  and  Senatus  consulta 
being  slight  in  comparison.  The  Emperors,  moreover, 
spoke  the  last  word.  It  was  their  legislation  which 
gave  to  the  Roman  law  the  shape  in  which  it  descended 
to  the  modern  world  both  in  the  East  and  in  the  West. 

The  Emperor's  legislative  authority  grew  up  slowly 


/,">'/! A    AM)   ENGLISH   LEGISLATION  731 

and  almost  imperceptibly  out  of  the  rights  which  he 
enjoyed  as  holder  of  several  great  magistracies,  or  in- 
vested with  the  powers  which  belonged  to  them.  Al- 
though, in  later  times,  the  imperial  function  of  legisla- 
tion was  ascribed  to  a  formal  transfer  made  to  him  by 
the  people  of  their  own  authority1,  it  is  important  to 
remember  that  its  true  parent  is  to  be  sought,  not  in 
leges,  nor  even  in  Sctiatns  consulta,  not  in  any  representa- 
tion by  him,  as  the  heir  of  the  Assembly,  of  the  ancient 
right  of  popular  sovereignty,  but  rather  in  the  Edicts 
of  the  magistrates,  whether  their  formal  enunciations 
on  entering  office  of  the  rules  by  which  they  proposed 
to  act,  or  their  less  public  instructions  to  their  sub- 
ordinate officials. 

Even  the  action  of  the  jurists,  and  the  custom  of  issu- 
ing answers  on  points  of  law  (response),  contributed 
something  to  the  conception  of  the  Emperor  as  a  source 
of  law,  for  he  was,  as  a  magistrate,  an  authoritative  ex- 
ponent of  the  contents  of  the  customary  law,  and  of  the 
interpretation  of  the  statute  law ;  and  if  an  answer  given 
under  his  commission  by  an  authorized  jurist  was  bind- 
ing on  a  index,  how  much  more  weight  was  due  to  a  de- 
claration proceeding  from  himself,  the  fountain-head  of 
authority?  That  the  imperial  ordinances  have  not  pre- 
served the  outward  forms  and  character  of  the  republican 
statutes  is  a  consequence  of  these  facts  and  of  the  con- 
ception I  have  described.  They  are  not  expressed  in  the 
same  strict  and  highly  technical  language  as  the  old  sta- 
tutes were.  As  regards  some  of  them,  and  especially 
some  of  those  which  belong  to  the  first  two  centuries  of 
the  Empire,  it  is  hard  to  say  whether  they  were  originally 
intended  to  have  a  general  application,  for  they  may 
have  been  mere  instructions  or  declarations  of  opinion, 
given  for  the  special  occasion  and  purpose  only.  In 
fact  the  Emperors  found  it  necessary  to  protest  against 
the  tendency  to  attach  legal  weight  to  all  their  words. 
Trajan,  for  instance,  who  seems  to  have  left  the  cha- 

»  Cf .  Just.  /«*/.  i.  2.  6 :  cf .  Dig.  \.  4.  i. 
4ft 


722  ROMAN  AND  ENGLISH  LEGISLATION 

racter  of  being  more  indulgent  than  most  of  his  prede- 
cessors or  successors — witness  the  story  of  the  widow 
through  whom  and  the  prayers  of  Pope  Gregory  he  ob- 
tained salvation  1 — declares  that  when  he  makes  an  an- 
swer to  a  particular  request  he  by  no  means  desires  to 
be  taken  as  establishing  a  precedent.  He  felt,  no  doubt, 
that  in  many  cases  the  precedent  would  be  of  question- 
able value,  according  to  the  proverb  that  hard  cases 
make  bad  law.  However,  the  tendency  was  too  strong 
to  be  resisted.  All  declarations  emanating  from  the 
supreme  authority  in  the  State  were  taken  to  be  binding 
on  its  subjects :  and  we  may  imagine  how  often  a  wily 
advocate,  or  an  adulatory  judge,  would,  with  loud  pro- 
fessions of  loyalty,  insist  on  regarding  as  law  what  the 
Emperor  had  intended  to  be  merely  a  good-natured 
compliance  with  the  petition  of  some  unlucky  or  impor- 
tunate suppliant. 

It  is  not  necessary  for  our  immediate  purpose  to  de- 
scribe the  various  forms  which  the  legislation  of  the  Em- 
perors took.  They  are  classed  as  Rescripts,  answers  to 
questions  or  petitions,  Edicts  or  general  proclamations, 
Mandates  or  instructions  to  officials,  Decrees  (decreta), 
decisions  of  the  Emperor  as  being  at  first  practically, 
and  at  last  legally  also,  a  Supreme  Court  of  Appeal  2. 
In  later  times  the  general  name  of  Constitutions  (consti- 
tutio  est  quod  imperator  constituit),  was  given  to  them  ;  and 
in  what  has  to  be  said  further,  minor  differences  between 
the  above  mentioned  forms  may  be  ignored,  and  the 
various  kinds  of  constitutions  may  be  treated  together 
as  being  all  of  them  enunciations  by  the  sovereign  power 
of  those  general  rules  of  law  which  it  desired  to  have 
observed  by  its  subjects — as  being  in  fact  on  the  same 
footing  as  an  imperial  Ukase  in  Russia,  or  an  Act  of 
Parliament  in  England. 

Such  legislation  by  an  irresponsible  autocrat  as  that 

1  Dante,  Purgat.  canto  x. 

2  Sometimes  the  speeches  delivered  to  the  Senate  are  included,  but  in  these  cases 
the  law  seems  (as  already  observed)  to  have  been  deemed  rather  senatorial  than 
imperial. 


ROMAN  AND  ENGLISH  LEGISLATION  723 

with  which  the  Roman  State  ended,  stands  at  the  oppo- 
site pole  from  that  legislation  by  a  primary  assembly  with 
which  the  Roman  State  began.  The  latter  organ  was  a 
stiff,  heavy,  cumbrous  machine,  which  it  was  hard  to  set 
in  motion,  and  which  could  work  only  under  certain  pre- 
scribed forms.  The  former  was  not  only  immensely 
powerful,  but  so  readily  applicable,  playing  so  swiftly 
and  so  smoothly,  that  it  was  likely  to  be  used  too  often 
and  to  act  too  fast.  The  Roman  Emperor  occupied,  it 
must  be  remembered,  a  position  different  from  that  of 
any  absolute  sovereign  in  modern  times.  The  Czars  in 
Russia  now,  the  Prussian  and  French  kings  in  the  last 
century,  are,  or  were,  the  heads  of  their  respective  na- 
tions, and  therefore  not  only  to  some  extent  likely  to 
participate  in  national  ideas  and  sentiments,  but  also 
largely  amenable  to  national  public  opinion.  However 
complete  their  legal  sovereignty  and  practical  control, 
the  misuse  of  their  legislative  powers  could  not  escape 
popular  censure.  A  national  king  is  naturally  restrained 
by  the  fear  of  displeasing  his  fellow  countrymen.  But 
the  monarch  of  the  Roman  world,  a  world  where  the 
old  Roman  nationality  had,  before  it  expired,  so  far 
crushed  the  other  subject  nationalities  that  none  of  them 
could  offer  any  resistance  to  the  levelling  pressure  of 
the  imperial  authority,  found  himself  unguided  and  un- 
controlled by  any  influence,  except  the  dread  of  a  palace 
conspiracy  or  a  military  rising.  Public  opinion  pos- 
sessed then  no  voice,  such  as  it  afterwards  found  in  the 
church,  or  finds  now  in  the  press.  The  various  peoples 
who,  from  the  second  or  third  century  A.D.  onwards, 
called  themselves  Romans,  had  not  been  sufficiently 
fused  together  to  have  a  common  public  opinion.  It 
was  not  till  the  sixth  or  seventh  or  eighth  century  that 
the  greatly  narrowed  Eastern  Empire  began  to  have  a 
social  and  moral  coherence,  and  developed  into  what 
might  be  called  a  National  power. 

This  unique  position  of  the  Roman  Emperor  made 
legislation  a  great  deal  easier  for  him  than  for  any 


724  ROMAN  AND   ENGLISH  LEGISLATION 

modern  monarch,  easier  than  for  the  ruler  of  China,  be- 
cause there  was  no  vast  body  of  ancient  customs  he 
might  fear  to  break  through,  easier  than  for  a  Turkish 
Sultan,  because  there  was  no  quasi-ecclesiastical  au- 
thority like  the  Sheik-ul-Islam  or  the  whole  body  of 
Muslim  doctors  he  might  fear  to  offend.  And  the  fact 
already  noted  that  the  powers  of  the  popular  Assembly 
had  not  been  formally  vested  in  him,  worked  in  the  same 
direction.  Had  there  been  any  legal  transference  of 
legislative  functions,  some  of  the  old  forms  and  methods 
would  have  passed  over  with  the  transfer.  There  would 
have  been  at  any  rate  a  pretty  sharp  line  drawn  between 
the  officially  promulgated  ordinances  of  the  Emperor 
and  the  merely  occasional  and  informal  expressions  of 
his  will.  But  (as  has  already  been  noted)  the  Emperor 
did  not  legislate  as  the  assignee  of  the  popular  power 
of  legislation.  His  function  of  making  laws  sprang  from 
his  authority  as  a  magistrate,  and  the  undefined  charac- 
ter of  that  authority  remained  with  him,  and  helped  to 
make  his  exercise  of  it  infinitely  various  in  shape  and 
expression.  Accordingly  in  later  days  no  line  was  for- 
mally and  technically  drawn  between  the  more  and  the 
less  solemn  declarations  of  his  sovereign  will.  He  was 
not  bound  by  the  laws.  He  made  law  as  a  part  of  his 
daily  administrative  and  juridical  action.  He  legislated, 
one  might  almost  say,  as  he  talked  and  wrote.  He  ex- 
haled law.  Whenever  an  idea  occurred  to  him,  or  to 
the  minister  authorized  to  speak  in  his  name,  he  had 
only  to  sign,  in  the  purple  ink  reserved  (in  those  later 
days)  for  the  monarch,  a  few  lines,  and  therewith  a  law 
sprang  at  once  into  being. 

This  was  the  theory,  and  this  was  also  to  some  extent 
the  practice.  Still  the  exigencies  of  a  position  which 
threw  on  one  man  a  prodigious  burden  of  toil  and  re- 
sponsibility, compelled  the  Emperors  to  make  regular 
provision  for  the  discharge  of  their  legislative  and  ju- 
dicial work.  A  Council  soon  grew  up,  consisting  at 
first  chiefly  of  Senators,  afterwards  largely  of  jurists, 


7?OJ/,i.y  .t.v/>  /•: \fiLisii   LEGISLATION  725 

whose  members  acted  as  assessors  to  the  Emperor  when 
he  heard  civil  or  criminal  cases,  and  who  also  advised 
him  on  projects  of  legal  change.  At  first  it  was  a  fluctu- 
ating body,  composed  of  persons  whom  the  monarch 
summoned  for  each  particular  occasion,  though  doubt- 
less some  of  the  ablest  and  most  trusted  men  would  be 
invariably  summoned.  But  under  Trajan  and  Hadrian 
it  became  a  regularly  organized  chamber  of  formally 
nominated  and  salaried  officials,  in  which,  besides  ju- 
rists, there  sat  some  Senators  and  Knights,  and  a  few 
of  the  chief  court  officers,  together  with  the  Praetorian 
Prefect,  who  seems  after  the  second  century  to  have 
held  the  leading  place.  As  it  was  numerous,  we  may 
suppose  that  particular  members  were  summoned  for 
particular  kinds  of  business,  or  that  it  often  worked  by 
committees.  In  all  these  points  it  furnishes  an  interest- 
ing parallel  to  the  English  Privy  Council.  And  it  was 
itself,  under  the  name  of  Consistorium,  which  it  took 
in  the  time  of  Diocletian,  the  model  on  which  the  papal 
Consistory  was  ultimately  built  up  by  the  bishop  of  the 
imperial  city.  Some  of  its  chief  members  were  the  im- 
mediate ministers  of  the  sovereign,  journeying  with 
him,  as  Papinian  accompanied  Septimius  Severus  to 
York,  or  directing  legal  and  judicial  business  from 
Rome,  while  he  made  progresses  through  the  provinces, 
or  warred  against  the  barbarians  on  the  frontier.  Among 
the  duties  of  the  Emperor's  legal  councillors,  that  of 
prompting,  directing,  and  shaping  legislation  must  have 
been  an  important  one.  Probably  there  was  a  regular 
staff  for  the  purpose,  a  sort  of  Ministry  of  Justice,  di- 
rected by  the  Praetorian  Prefect,  and  in  later  times  by 
the  Quaestor,  with  a  body  of  draftsmen  and  clerks. 
How  much  the  Emperor  himself  contributed,  or  how 
far  he  examined  for  himself  what  was  submitted  to  him, 
would  depend  on  his  own  special  knowledge  and  in- 
dustry. Rude  soldiers  like  Maximin,  debauchees  like 
Commodus,  would  leave  everything  to  their  advisers, 
and  if  these  had  been  wisely  selected  by  a  preceding  Em- 


726  ROMAN  AND  ENGLISH  LEGISLATION 

peror,  things  might  go  on  almost  as  well  as  under  a 
capable  administrator  like  Hadrian,  or  a  conscientious 
one  like  Severus  Alexander1.  The  number  of  consti- 
tutions enacted  was  enormous,  judging  not  only  from 
what  the  Empire  must  have  needed,  but  from  the  laws, 
or  fragments  of  laws,  which  remain  to  us  in  the  Codes 
of  Theodosius  II  and  Justinian;  and  as  the  legislative 
action,  both  of  the  Senate  and  of  the  Magistrates  (other 
than  the  Emperor),  had  almost  wholly  ceased  after  Ha- 
drian's time,  while  the  local  rules  and  customs  of  the 
provinces  tended  to  be  more  and  more  superseded  by 
the  law  of  the  ruling  city,  legislation  may,  at  least  for  a 
considerable  period,  have  rather  increased  than  dimi- 
nished in  volume. 

The  good  and  bad  points  of  a  system  which  commits 
the  making  of  laws  to  an  absolute  sovereign  are  easily 
summed  up.  Autocratic  power  is  the  most  swift  and 
efficient  of  all  instruments  for  effecting  reforms.  Used 
with  skill,  tact,  and  moderation,  it  can  confer  incalculable 
benefits  on  a  country.  To  be  able  at  your  pleasure  to 
abolish  obsolete  institutions,  to  curtail  the  offensive 
privileges  of  a  class,  to  override  vested  interests,  to  re- 
move needless  anomalies  and  antiquated  forms  of  pro- 
cedure, to  simplify  the  law  by  condensing  a  confused 
mass  of  statutory  provisions,  or  expressing  the  result 
of  a  long  series  of  cases  in  a  single  enactment,  and  to  do 
all  this  without  the  trouble  of  justifying  your  enlightened 
purposes  to  the  dull  and  the  ignorant,  or  of  mitigating 
hostility  by  concessions  and  compromises  which  ruin 
the  symmetry  and  reduce  the  effectiveness  of  your 
scheme — this  is  indeed  a  delightful  prospect  for  the  law 
reformer.  The  power  of  trying  experiments  is  seduc- 
tive to  the  philanthropist  or  the  philosopher,  for  there 
are  many  problems  which  ought  to  be  attacked  by  ex- 
perimental methods,  since  nothing  but  an  experiment 

1  Of  whom  we  are  told  that  he  never  sanctioned  any  Constitution  without  the 
advice  of  at  least  twenty  jurisconsults.  After  Hadrian  the  Consiliarius  Augusti 
had  a  position  of  recognized  dignity. 


ROMAN  AND  ENGLISH   LEGISLATION  737 

can  test  the  merit  of  a  promising  plan.  Yet  experiments 
are  just  the  things  which  in  popularly  governed  coun- 
tries it  is  rarely  possible  to  try,  because  the  bulk  of  man- 
kind, being  unscientific,  will  seldom  permit  a  thing  to 
be  tried  till  it  has  been  proved  to  be  not  merely  worth 
trying  but  absolutely  necessary,  while  when  it  has  been 
tried,  and  has  not  worked  well,  it  is  almost  as  hard  to 
persuade  them  either  to  vary  it  or  to  drop  it  altogether. 
To  tell  the  multitude  that  the  scheme  you  propose  may 
fail,  though  you  think  it  worth  trying,  is  to  discredit 
it  in  their  eyes.  To  admit  that  it  has  failed  is  to  destroy 
your  own  credit  for  the  future. 

So  again,  if  it  is  a  question  of  improving  the  form  and 
expression  of  the  law,  an  absolute  monarch  evidently 
enjoys  the  finest  possible  opportunities  of  creating  a 
perfect  system.  He  can  command  all  the  highest  legal 
ability  of  the  State.  He  can  bestow  upon  his  commis- 
sion of  legislators  or  codifiers  the  widest  discretion. 
When  they  have  finished  their  work  he  can  subject  it 
to  any  criticism  he  pleases  before  enacting  it  as  law. 
When  he  enacts  it,  he  can  abolish  all  pre-existing  law  by 
a  stroke  of  the  pen.  Even  afterwards  he  can  readily 
correct  any  faults  that  may  have  been  discovered,  can 
suppress  old  editions,  can  provide  means  by  which  the 
law  shall  be  regularly  from  time  to  time  amended,  so 
that  all  new  statutes  and  all  interpreting  decisions  shall 
be  incorporated  with  it  or  appended  as  supplements  to 
it.  Few  are  the  philanthropic  enthusiasts,  few  are  the 
theoretical  codifiers,  who  have  not  sighed  for  an  Auto- 
crat to  carry  out  their  large  designs. 

According  to  that  law  of  compensation  which  obtains 
in  all  human  affairs  these  advantages  are  beset  by  corre- 
sponding dangers.  Ease  begets  confidence,  confidence 
degenerates  into  laxity  and  recklessness.  As  the  laws 
of  metre  and  rhyme  help  the  versifier  by  forcing  him 
to  study  and  polish  his  diction,  so  he  who  is  not  now 
and  then  stopped  by  obstacles  is  apt  to  advance  too 
quickly,  and  may  not  consider  whither  he  is  going.  If 


728  ROMAN  AND  ENGLISH  LEGISLATION 

an  error  can  be  readily  recalled  it  is  lightly  ventured, 
and  the  hasty  legislator  discovers  too  late  that  it  is  not 
the  same  thing  to  recall  an  error  as  never  to  have  com- 
mitted it.  In  the  field  of  legislation  the  danger  of  doing 
too  much  is  a  serious  danger,  not  only  because  the 
chances  of  error  are  manifold1,  but  because  the  law 
ought  to  undergo  as  few  bold  and  sudden  changes  as 
possible.  The  natural  process  whereby  the  new  circum- 
stances, new  conditions,  new  commercial  and  social  re- 
lations that  are  always  springing  up  become  recognized 
in  custom  and  dealt  with  by  juridical  science  before 
direct  legislation  impresses  a  definite  form  upon  the 
rules  that  are  to  fix  them — this  process  is  the  best,  and 
indeed  the  only  safe  way  by  which  a  nation  can  create 
a  refined  and  harmonious  legal  system.  Even  the  cer- 
tainty of  the  law  is  apt  to  suffer  if  legislation  becomes 
too  easy,  for  the  impatient  autocrat  may  well  be  tempted, 
when  some  defect  has  been  discovered,  to  change  it 
forthwith,  and  then  to  find  that  the  change  has  been  too 
sweeping,  so  that  steps  must  be  taken  backward,  with 
the  result  of  rendering  doubtful  or  invalid  transactions 
which  have  occurred  in  the  meantime.  If  these  dangers 
are  to  be  avoided,  it  must  be  by  entrusting  legislation  to 
the  hands  of  advisers  not  only  learned  and  skilful  but 
also  of  a  conservative  spirit.  In  war  and  politics  bold- 
ness is  quite  as  needful  as  caution,  but  in  reforming  the 
law  of  a  country  the  risk  of  going  too  slow  is  less  serious 
than  that  of  going  too  fast. 

These  observations  are  illustrated  by  the  course  of 
events  at  Rome.  At  first,  while  the  magistrates  were 
still  hard  at  work  in  building  up  the  law  by  their  Edicts, 
and  the  jurists  no  less  active  in  developing  it  on  con- 
servative lines  by  their  responsa  and  treatises,  the  Em- 
perors used  their  legislative  power  sparingly  because 
they  were  guided  by  accomplished  lawyers.  Compara- 
tively few  constitutions  are  cited  from  the  days  of  Trajan 

1  To  fiev  yap  afxaprareiv  nroAAaxw?  eo-ri,  TO  Se  KaropOovv  /u.ovax<o9,  says  Aristotle  : 
4  You  can  hit  only  in  one  way,  but  you  may  miss  in  many.' 


. 

ROMAN  AND  ENGLISH   LEGISLATION  729 

and  Hadrian,  and  even  from  those  of  the  Antonines. 
These  constitutions  are  short,  clear,  precise,  introduc- 
ing only  those  new  rules  or  deciding  only  those  ques- 
tions which  it  was  necessary  to  establish  or  deal  with. 
After  the  time  of  Diocletian1,  when  the  powers  of  the 
old  magistrates  had  withered  away  and  the  fountain  of 
juristic  genius  had  dried  up,  direct  legislation  became 
far  more  copious,  and  began  to  range  more  widely  over 
all  sorts  of  subjects.  Serviceable  it  certainly  was  in 
the  way  of  abolition,  for  there  was  much  to  be  abolished. 
But  it  tended  to  become  always  more  and  more  rash 
and  heedless  in  its  dealings  with  the  pre-existing  law. 
Apart  from  the  harshness  or  bad  economics  which  fre- 
quently marred  its  provisions,  it  was  often  injudicious 
in  matters  of  pure  legal  science.  If  in  some  cases  it 
cleared  the  ground  of  antiquated  rules  and  forms,  in 
others  it  merely  shore  away  abruptly  and  inartistically 
the  more  conspicuously  inconvenient  applications  of  an 
old  doctrine,  while  leaving  the  doctrine  itself  to  create 
future  difficulty.  It  acted  too  much  with  reference  to 
the  particular  evil  dealt  with,  too  little  with  a  view  to 
the  law  as  a  whole.  It  was,  in  a  word,  too  unmindful  of 
that  clcgantia,  that  inner  harmony  and  consistency  with 
principle  which  had  been  always  before  the  eyes  of  the 
elder  jurists.  Legal  style  and  diction  experienced  a 
similar  declension.  From  and  after  the  days  of  Diocle- 
tian, the  language  of  imperial  ordinances  grows  more 
and  more  rhetorical,  pompous,  and  turgid.  The  imperial 
utterances  had  never  emulated  the  scrupulous  exacti- 
tude and  technicality  of  the  republican  leges.  But  they 
were,  during  the  first  two  centuries  of  the  Empire,  simple 
and  concise.  Afterwards,  while  becoming  more  prolix 
they  became  also  less  exact.  These  faults  are,  to  be  sure, 
not  mainly  due  to  the  more  palpably  despotic  position 
of  the  Emperor,  but  rather  to  the  steady  deterioration 
of  juridical  and  literary  capacity  which  mark  these  later 

1  Many  of  Diocletian's  rescripts  are  well  expressed  and  show  a  mastery  of  the 
old  legal  principles. 


730  ROMAN  AND  ENGLISH  LEGISLATION 

centuries.  That  the  decline  was  less  evident  in  the  de- 
partment of  law  than  in  most  other  branches  of  intel- 
lectual life  may  be  ascribed,  partly  to  the  nature  of  the 
subject,  which  does  not  invite  florid  treatment,  partly  to 
the  absence  of  Greek  rhetorical  models,  Greek  being 
eminently  the  language  of  rhetoric,  partly,  perhaps,  also 
to  the  influence  of  the  two  great  law  schools  of  Beyrut 
and  Constantinople,  and  to  the  fact  that  the  writings  by 
which  the  lawyer's  mind  was  formed  were  still  the  ad- 
mirable works  of  the  luminaries  of  the  early  Empire. 
Still  the  fall  is  a  great  one.  How  much  more  repellent 
is  the  extreme  of  over-ripe  laxity  than  the  extreme  of 
primitive  stiffness  may  be  felt  by  any  one  who  will 
"compare  the  weak  and  wordy  '  New  Constitutions ' 
(Novels)  of  Justinian  with  the  crabbed  strength  of  the 
Twelve  Tables,  abrogated  by  Justinian  himself  after  a 
thousand  years  of  reverence.  There  is,  in  fact,  only  one 
fault  which  the  later  imperial  legislation  may  appear  to 
have  avoided  when  we  compare  it  with  that  of  modern 
England  or  America.  It  goes  much  less  into  detail. 
It  does  not  seek  to  exhaust  possible  cases,  and  provide 
for  every  one  of  them.  This  merit,  however,  is  due,  not 
so  much  to  skill  on  the  part  of  the  Roman  draftsmen, 
as  to  the  range  of  power  allowed  to  Roman  officials  and 
judges,  and  to  the  faint  recognition  of  the  rights  of  the 
individual  subject.  The  tedious  minuteness  of  modern 
English  and  American  statutes,  if  it  grieves  the  scientific 
lawyer,  is  after  all  a  laudable  recognition  and  expression 
of  that  respect  for  personal  liberty  and  jealousy  of  the 
action  of  the  executive  which  have  distinguished  the 
English  race  on  both  sides  of  the  Atlantic.  Thus  that 
which  might  appear  to  be  an  excellence  of  the  later  im- 
perial legislation  in  point  of  form  is  seen  to  be  an  evil  in 
point  of  substance,  for  it  is  due,  not  to  any  superiority 
of  legal  skill,  but  to  the  existence  of  an  autocracy  which 
did  not  care  to  limit  the  discretion  of  its  subordinate 
officers. 


ROMAN  AND  ENGLISH  LEGISLATION  731 

IX.     DIRECT  LEGISLATION  IN  ENGLAND: 
PARLIAMENT. 

It  remains  for  us  to  consider  the  organ  of  direct 
legislation  in  England,  and  the  work  which  that  organ 
turns  out.  Here  again  I  must  turn  away  from  the  large 
field  of  historical  inquiry.  The  history  of  English  sta- 
tutes, their  development  out  of  petitions  addressed  to 
the  sovereign  in  his  Great  Council,  the  mode  in  which 
they  were  drafted,  debated,  and  passed,  the  rules  of 
interpretation  which  have  obtained  regarding  them, 
their  influence  at  different  epochs  upon  the  growth  of 
the  Common  Law,  the  development  and  value  of  the 
functions  of  non-official  members  of  Parliament  in  pre- 
paring them  and  getting  them  passed,  the  decay  of  those 
functions  which  the  last  few  years  have  seen — all  these 
would  supply  interesting  and  instructive  matter,  not 
merely  for  an  essay  but  for  a  treatise.  But  seeing  how 
long  we  have  had  to  wait  for  a  philosophical  history 
of  the  law  of  England  in  general,  one  need  not  be  sur- 
prised that  this  particular  department  still  waits  for  its 
historian1. 

In  England  there  has  been,  through  the  long  course 
of  our  history,  only  one  organ  of  Direct  Legislation,  viz. 
the  Great  Council  of  the  nation.  It  began  as  a  Primary 
Assembly  of  all  freemen.  It  passed,  between  the  time 
of  Athelstan  and  that  of  Henry  III,  through  a  phase  in 
which  it  had,  owing  to  the  growth  of  the  nation  and  to 
the  practical  limitation  of  its  membership,  almost  ceased 
to  be  Primary  in  fact,  though  its  theoretical  character, 
as  embracing  the  whole  people,  had  not  been  abrogated. 
Since  the  time  of  Edward  I  it  has  consisted  of  two 
branches,  one  of  which  is  Primary,  the  other  Repre- 

1  The  admirable  History  of  English  Law  of  Professors  Pollock  and  Maitland 
stops  soon  after  the  point  at  which  parliamentary  legislation  begins.  Since  the  pas- 
sage in  the  text  was  written,  the  book  of  Sir  C.  P.  Ilbert,  entitled  Legislative  Me- 
thods and  Forms,  has  been  published.  It  is  full  of  valuable  information  and  acute 
remarks  upon  modern  English  legislation,  and  brings  together  a  mass  of  historical 
facts  never  previously  collected. 


732  ROMAN  AND  ENGLISH  LEGISLATION 

sentative;  and  this  present  phase  is  evidently  drawing 
to  its  end. 

Thus  the  history  of  Direct  Legislation  in  England 
stands  contrasted  with  the  history  of  such  legislation 
in  Rome  in  two  points:  (i)  that  we  in  England  have 
always  had  an  organ  which  in  intendment  of  law  was 
the  same  from  beginning  to  end,  and  admittedly  su- 
preme ;  and  (2)  that  we  have  never  had  more  than  one 
organ  at  the  same  time,  whereas  at  Rome  the  theoreti- 
cally complete  and  unrestricted  legislative  power  of  the 
popular  assembly  coexisted,  for  a  time,  with  the  legisla- 
tive power  of  the  Senate,  and  the  theoretically  complete 
and  unrestricted  legislative  power  of  the  Senate  co- 
existed for  a  certain  period  with  the  legislative  power 
(stronger,  but  at  first  carefully  disguised)  of  the  Em- 
peror. It  may  seem  absurd  to  speak  of  two  organs  of 
direct  legislation  as  each  complete  and  supreme :  yet 
such  would  seem  to  have  been  the  theory  of  the  Roman 
law.  We  in  England  came  near  having  a  similar  state 
of  things  in  the  days  when  the  Crown  claimed,  and  was 
sometimes  permitted  to  exert,  a  power  of  legislating 
apart  from  Parliament  and  not  in  virtue  of  any  permis- 
sion by  Parliament.  But  this  power  was  never  for- 
mally recognized  by  the  law. 

The  Parliament  of  the  United  Kingdom  and  that  eld- 
est and  strongest  of  its  numerous  progeny,  the  Congress 
of  the  United  States,  seem  at  first  sight  well  composed 
and  admirably  equipped  for  securing  legislation  which 
shall  be  excellent  in  point  both  of  Substance  and  of 
Form.  As  to  excellence  of  Substance,  these  assemblies 
ought  to  be  able  to  make  such  laws  as  the  people  wish 
and  need,  for  they  are  popular  in  character,  giving  full 
expression  to  the  wishes  of  all  classes,  and  enabling 
any  person  or  section  aggrieved  by  existing  defects  in 
the  law  to  state  his  complaints  and  suggest  a  remedy 
for  them.  The  British  Parliament,  moreover,  consists 
of  two  Houses,  one  of  which,  while  deficient  in  the 
strength  that  comes  from  popular  election,  is  by  its 


ROMAN  AND  ENGLISH  LEGISLATION  733 

composition  capable  of  looking  at  questions  from  a 
point  of  view  unlike  that  of  the  Lower  House.  It  con- 
tains many  men  of  great  ability  and  knowledge  of  affairs, 
so  that  it  could  well  discharge  (if  so  disposed)  the  func- 
tions of  criticism  and  revision.  So  the  American  Con- 
gress has  also  the  advantage  of  being  composed  of  two 
branches,  either  of  which  can  criticize  and  amend  the 
bills  passed  by  the  other. 

As  regards  excellence  of  Form,  which  is  that  with 
which  we  are  here  specially  concerned,  several  notable 
merits  may  be  claimed  for  the  British  Parliament.  The 
House  of  Lords,  as  has  been  just  observed,  contains 
among  the  fifty  or  sixty  persons  (out  of  nearly  six  hun- 
dred members)  who  habitually  attend  its  sittings  not 
a  few  possessing  intellectual  power  and  practical  ex- 
perience, with  (usually)  some  seven  or  eight  distin- 
guished lawyers,  the  flower  of  the  legal  profession. 
Being  a  representative  body,  the  House  of  Commons 
contains  persons  who  are  presumably  above  the  average 
in  knowledge  of  the  world  and  its  affairs,  as  well  as  in 
intellectual  capacity.  Among  these  there  are  to  be  found 
many  men  (though  a  smaller  proportion  than  is  found 
in  the  American  Congress  or  in  some  colonial  legisla- 
tures) who  possess  a  technical  acquaintance  with  the 
laws  of  the  country,  and  ought  to  be  specially  well  fitted 
to  amend  them,  while  at  the  same  time  any  such  ten- 
dency as  professional  men  might  have  to  indulge  in  mere 
technicalities  is  likely  to  be  corrected  by  the  presence  of 
a  majority  of  laymen.  They  deliberate  in  full  publicity, 
and  thereby  can  obtain  from  all  quarters  suggestions 
that  may  direct  or  help  them.  They  are  responsible  to 
those  who  have  sent  them  up,  and  who  can  closely 
watch  their  conduct.  Ample  opportunities  are  provided 
for  the  discussion  of  every  measure,  and  for  curing  any 
defect  which  may  lurk  in  any  Bill  brought  forward  either 
by  the  Ministers  of  the  Crown,  liable  through  their  posi- 
tion to  a  fire  of  hostile  criticism,  or  by  a  private  mem- 
ber. Every  Bill  has  to  pass  through  seven  stages  in 


734  ROMAN  AND  ENGLISH  LEGISLATION 

the  House  of  Commons  l,  and  six  in  the  House  of  Lords, 
and  at  each  of  these  stages  it  may  be  debated  at  indefi- 
nite length  2.  That  must  be,  one  would  think,  either  a 
very  trivial  or  a  strangely  hidden  blemish  which  escapes 
the  notice  of  keen,  experienced,  and  often  unfriendly 
critics  on  twelve  successive  occasions  3.  Could  any  ma- 
chinery be  better  adapted  to  secure  that  the  laws  passed 
shall  be  expressed  in  the  most  clear  and  precise  terms, 
that  each  shall  be  well  arranged  and  self-consistent,  that 
every  new  statute  shall  be  properly  fitted  into  those  that 
have  gone  before,  and  shall,  in  effecting  any  change,  re- 
peal expressly  the  parts  of  previous  statutes  which  it 
affects,  so  as  to  provide  against  possible  uncertainty  or 
discrepancy? 

Why  is  it  then  that  we  hear  so  many  complaints  about 
the  condition  of  the  laws  of  England  as  to  the  number 
of  points  which  remain  unsettled,  as  to  the  confusion 
in  which  some  great  departments  of  law  lie,  as  to  the 
undue  length  of  our  statutes,  their  obscurity,  their  in- 
consistencies, their  omissions?  I  do  not  inquire  to  what 
extent  these  complaints  are  well  founded.  It  is  enough 
to  note  that  they  proceed  not  merely  from  scientific 
jurists,  who  might  be  supposed  to  be  enamoured  of  an 
impossible  ideal,  but  from  such  practical  men  as  com- 
pose our  commercial  classes,  such  technically  compe- 
tent as  well  as  practical  men  as  the  judges  of  the  land. 

Somewhat  similar  complaints  are  made  in  the  United 
States.  The  methods  of  legislation  used  there  are  gene- 
rally similar  to  those  of  Britain,  both  in  the  Federal 
Congress  and  in  the  forty-five  State  Legislatures,  and 
every  one  of  these  bodies  consists  of  two  Houses,  each 

1  Now  (1900)  reduced  to  six  by  the  discontinuance  of  the  habit  of  putting  the 
question  that  Mr.  Speaker  do  leave  the  chair  when  the  House  of  Commons  goes 
into  Committee. 

2  Now,  however,  subject  to  the  power  of  imposing  the  closure  of  debate,  a  power 
the  growing  frequency  of  whose  exercise  has  greatly  altered  the  character  of  the 
House. 

3  Now  reduced  to  eleven.    The  number  of  stages  for  a  Bill  which  passes  through 
both  Houses  must  be  calculated  by  subtracting  one  from  the  number  reached  by 
adding  the  stages  in  each  House,  because  a  Bill  coming  from  either  House  to  the 
other  obtains  its  first  reading  as  a  matter  of  course,  without  debate. 


ROMAN  AND  ENGLISH  LEGISLATION  735 

jealous  of  the  other.  The  chief  difference  is  that  the 
Americans  consolidate  their  statutes  at  certain  inter- 
vals, so  that  the  statute  law,  both  Federal  and  State,  is 
brought  within  a  smaller  compass  than  that  of  the  United 
Kingdom.  Subject  to  this  and  to  some  minor  dissimi- 
larities, the  remarks  which  follow  on  the  causes  why 
British  legislation  is  less  perfect  than  might  be  expected 
from  the  elaborate  machinery  provided  for  producing  it 
apply  to  the  United  States  also  l. 

The  methods  of  British  legislation,  and  the  dangers 
incident  to  those  methods,  are  exactly  the  opposite  to 
those  which  we  have  noted  in  Rome.  Both  under  the 
Republic,  when  statutes  were  passed  at  the  instance  of 
a  magistrate  with  no  possibility  of  amendment  by  the 
Assembly,  and  under  the  later  Empire,  when  the  mo- 
narch or  his  advisers  could  issue  a  law  with  as  much 
ease  and  as  little  personal  fear  of  consequences  as  a 
counsel  can  draw  a  will  or  the  articles  of  a  joint  stock 
company,  no  provision  was  made  for  independent  criti- 
cism, nor  for  discussion,  nor  for  the  interposition  of 
delays.  The  excellence  of  the  law  depended  on  the  per- 
son who  prepared  and  proposed  it,  and  on  him  alone2; 
and  the  law  could  be  issued  to  take  effect  as  soon  as 
the  Assembly  had  given  its  one  vote  or  the  Emperor 
his  one  signature.  The  Senate  could  indeed  debate  and 
might  amend  the  forms  of  decrees  submitted  to  it,  but 
as  it  was  really  a  mere  instrument  in  the  Emperor's  hand 
it  exercised  these  powers  very  sparingly. 

With  us  in  England  the  opportunities  for  debate,  for 
resistance,  and  for  amendment  are  so  ample  as  to  pre- 
vent many  things  from  being  done  which  ought  to  be 
done,  and  to  impress  an  unscientific  cumbrousness,  pro- 
lixity, and  inelegance  upon  most  of  the  work  we  turn 
out.  Too  many  persons  are  concerned,  and  few  of  them 

1  As  to  the  actual  methods  and  difficulties  of  Parliamentary  legislation,  see  the 
penetrating  and  careful  analysis  contained  in  Sir  C.  P.  Ilbert's  Legislative  Methods 
and  Forms,  chap.  x. 

2  Although,  as  observed  above,  the  Emperor  might,  if  he  liked,  cause  a  draft 
Constitution  to  be  debated  in  his  Consistory. 


736  ROMAN  AND  ENGLISH  LEGISLATION 

have  any  care  or  taste  for  technical  excellence.  The 
House  of  Commons  is  overloaded  with  work,  some  of 
it  work  which  it  had  better  not  attempt,  but  which  it 
does  attempt  in  deference  to  the  clamorous  demands 
of  particular  sections  of  opinion.  A  reform  in  the  sub- 
stance of  the  law  excites  little  interest  unless  it  has 
either  some  political  (i.e.  party)  importance,  or  has  a 
considerable  pressure  of  public  opinion  behind  it.  A 
reform  in  the  form  and  expression  of  the  law,  having 
neither  of  these  forces  to  back  it  up,  excites  no  interest 
at  all.  Accordingly  it  is  neglected,  for  a  Ministry  is 
disposed  to  think  first  of  pleasing  its  own  supporters, 
then  of  winning  popular  favour  in  general,  and  accord- 
ingly gives  the  time  at  its  disposal  to  measures  deemed 
likely  to  secure  for  it  political  advantage. 

Private  (i.e.  unofficial)  members  of  Parliament  might 
supply  what  is  lacking  in  the  Ministry  by  bringing  for- 
ward and  passing  modest  and  useful  Bills,  calculated 
either  to  remove  minor  defects  in  the  substance  of  the 
law  or  to  improve  its  form.  But  the  Ministry  now  com- 
mands so  large  a  part  of  the  available  time  of  the  House 
of  Commons,  and  the  opportunities  given  to  members 
for  arresting  the  progress  of  other  members'  bills  are 
so  abundant,  that  hardly  anything  can  be  accomplished 
by  an  unofficial  member.  In  the  United  States,  where 
all  members  are  unofficial,  the  despotism  of  the  British 
Ministry,  which  after  all  is  a  responsible  despotism,  is 
replaced  by  the  irresponsible  despotism  of  the  Com- 
mittees, which  are  as  much  disposed  as  is  a  British 
Ministry  to  be  swayed  by  sectional  pressure  or  by  the 
prospect  of  political  gain. 

The  British  House  of  Commons  is  too  large  for  dis- 
cussing what  may  be  called  the  technical  or  formal  part 
of  legislation.  Its  debates  in  Committee  on  points  of 
substance  are  often  excellent.  But  it  cares  little  for 
harmony,  propriety,  and  conciseness  of  language.  If  an 
inexperienced  enthusiast  for  legal  symmetry  observes, 
in  proposing  an  amendment,  that  his  terms  will  not  affect 


ROMAN  AND  ENGLISH  LEGISLATION  737 

the  substance,  though  they  will  improve  the  form,  of 
the  clause,  he  is  impatiently  rebuked  for  occupying  the 
time  of  the  House  with  what  '  will  make  no  difference/ 
On  the  other  hand,  changes  in  substance  are  constantly 
made  in  Committee  which  have  the  effect  of  rendering 
the  form  of  the  measure  worse  than  when  it  came  from 
the  draftsman's  hands.  Clauses  are  put  in  or  struck  out, 
exceptions  are  added,  references  to  other  statutes  are 
inserted,  which  make  the  sense  of  the  enactment  diffi- 
cult to  follow  and  its  construction  uncertain.  Some- 
times these  faults  are  corrected  in  that  later  considera- 
tion which  is  called  the  Report  stage.  Sometimes  they 
are  not,  either  because  they  have  escaped  notice,  or 
because  the  Ministry  are  in  a  hurry,  and  do  not  wish  to 
risk  the  further  raising  of  questions  likely  to  give 
trouble.  The  House  of  Lords  ought  to  correct  all  such 
blemishes.  But  it  seldom  does  so,  either  from  indo- 
lence, or  because  it  does  not  wish  to  differ  with  the 
House  of  Commons  except  where  it  has  some  class  in- 
terest, political  or  economic,  to  contend  for.  In  fact, 
that  function  of  revision  which  modern  theory  attri- 
butes to  the  House  of  Lords  is  not  discharged. 

The  facilities  which  Parliamentary  procedure  affords 
for  delaying  the  progress  of  Bills  in  the  House  of  Com- 
mons are  so  ample,  not  to  say  profuse,  that  the  practice 
has  grown  up  of  drafting  Bills,  not  in  the  form  most 
scientifically  appropriate,  but  in  that  which  makes  it 
easiest  for  them  to  be  carried  through  under  the  fire 
of  debate.  To  lay  down  those  broad,  clear,  simple  pro- 
positions of  principle  which  conduce  to  the  intelligibility 
and  symmetry  of  the  law  is  to  invite  opposition,  and  to 
make  the  process  of  opposing  easier  for  those  who  de- 
sire to  resist,  but  have  not  the  technical  knowledge 
needed  for  a  minute  discussion.  To  bury  a  principle  out 
of  sight  under  a  mass  of  details ;  to  avoid  the  declara- 
tion of  a  principle  by  enacting  a  number  of  small  pro- 
visions, which  cover  most  of  the  practically  important 
points,  yet  do  not  amount  to  the  declaration  of  a  new 
47 


738  ROMAN  AND  ENGLISH  LEGISLATION 

general  rule;  to  insert  a  number  of  exceptions,  not  in 
themselves  desirable,  but  calculated  to  avert  threatened 
hostility;  to  hide  a  substantial  change  under  the  cloak 
of  a  reference  to  some  previous  Act  which  is  to  be  in- 
corporated with  the  Act  proposed  to  be  passed ;  to  deal 
with  some  parts  of  a  subject  in  one  year,  and  postpone 
some  other  parts  to  be  dealt  with  in  another  measure 
next  year,  while  leaving  yet  other  parts  to  the  chances 
of  the  future,  though  all  ought  to  have  been  included 
in  one  enactment; — these  are  expedients  which  are  re- 
pellent to  the  scientific  conscience  of  the  draftsman,  but 
which  are  forced  on  him  by  the  wishes  of  the  Minister 
who  is  in  charge  of  the  Bill  and  who  foresees  both  the 
objections  that  will  be  taken  to  it  and  the  opportunities 
for  obstructing  it  which  parliamentary  procedure  af- 
fords. Yet  the  Minister  may  well  plead  that,  with  the 
limited  time  at  his  disposal,  these  expedients  are  essen- 
tial to  the  passing  of  his  Bill.  Any  one  can  see  what 
complication,  what  obscurity,  what  uncertainty  in  the 
law  must  needs  result  from  this  way  of  amending  it. 

Thus  it  has  come  about  that  our  English  statute  law 
is  more  bulky  and  even  more  unscientific  in  its  form 
(whatever  the  excellence  of  its  matter)  than  was  the 
statute  law  of  the  Roman  Empire  when  Theodosius  II, 
and  afterwards  Justinian,  set  themselves  to  call  order 
out  of  chaos.  No  Theodosius  II,  no  Justinian,  need  be 
looked  for  in  England.  Yet  much  might  be  done  to 
reduce  the  existing  statutes  into  a  more  manageable 
mass,  and  something  to  improve  the  form  in  which  they 
come  from  the  hands  of  the  legislature.  The  former 
work,  previously  in  the  hands  of  the  Statute  Law  Com- 
mission, has  since  that  body  came  to  an  end  been  en- 
trusted to  another  body  called  the  Statute  Law  Com- 
mittee, which  is  conducting  a  general  revision  of  the 
statutes.  It  has  issued  a  Revised  Edition  coming  down 
to  A.D.  1886,  and  under  its  auspices  a  number  of  useful 
Consolidation  Acts  have  been  passed,  whereby  the  Sta- 
tute Law,  and  in  a  few  instances  the  Common  Law  also, 


ROMAN  AND  ENGLISH   LEGISLATION  739 

relating  to  particular  departments  has  been  brought  to- 
gether and  enacted  as  an  orderly  whole.  The  more 
difficult  enterprise  of  providing  better  methods  for  turn- 
ing out  new  law  in  a  clear,  concise,  and  scientifically 
ordered  form,  is  rarely  discussed,  even  by  lawyers,  and 
seems  to  excite  no  public  interest.  It  raises  many  diffi- 
cult questions  which  this  is  not  the  place  to  treat  of, 
so  I  will  be  content  with  observing  that  the  remedy  for 
the  present  defects  of  British  statutes  which  seems  least 
inconsistent  with  our  parliamentary  methods,  would  be 
to  refer  each  Act,  after  it  had  passed  both  Houses,  but 
before  it  received  the  royal  assent,  to  a  small  committee 
consisting  of  skilled  draftsmen  and  of  skilled  members 
of  both  Houses,  who  should  revise  the  form  and  lan- 
guage of  the  Act  in  such  wise  as,  without  in  the  least 
affecting  its  substance,  to  improve  its  arrangement  and 
its  phraseology,  the  Act  being  formally  submitted  once 
more  to  both  Houses  before  the  royal  assent  was  given, 
so  as  to  prevent  any  suspicion  that  a  change  of  sub- 
stance had  been  made.  It  is,  however,  unlikely  that 
Parliament  will  consent  to  any  proposal  of  this  nature ; 
and  even  if  some  such  expedient  were  adopted  it  would, 
at  least  in  some  cases,  fail  to  remove  the  faults  above 
described,  because  they  are  necessarily  incident  to  legis- 
lation by  large  assemblies  on  matters  which  excite  popu- 
lar feeling  and  involve  political  controversy. 


X.  SOME  REFLECTIONS  SUGGESTED  BY  THE  HISTORY 
OF  LEGISLATION. 

The  chief  reflections  which  a  study  of  Roman  and 
English  modes  of  law-making  seem  to  impress  upon  the 
inquirer's  mind  are  the  three  following. 

The  first  is  that  the  law  of  best  scientific  quality  is 
that  which  is  produced  slowly,  gradually,  tentatively, 
by  the  action  of  the  legal  profession.  At  Rome  it  was 
produced  by  the  unofficial  jurists  under  the  Republic, 


740  ROMAN  AND  ENGLISH  LEGISLATION 

by  the  authorized  jurists  under  the  earlier  Empire,  by 
the  magistrates  who  framed  and  went  on  constantly 
revising  the  Edicts  from  the  time  of  the  Punic  Wars  to 
that  of  Hadrian.  In  England  it  has  been  produced  by 
the  writers  of  text-books,  but  still  more  by  the  judges 
from  the  time  of  Glanvil  and  Bracton  down  to  our  own 
day.  Our  private  law  is  as  much  a  growth  of  time  as 
is  our  Constitution,  or  as  are  our  ideas  on  such  subjects 
as  economics  or  ethics.  What  has  been  true  of  the  past 
will  be  true  of  the  future;  and  though  we  can  foresee 
no  changes  in  the  future  comparable  to  those  which 
have  built  up  the  existing  fabric  of  our  law  out  of  the 
customs  of  the  thirteenth  century,  we  must  expect  the 
process  of  change  to  continue  as  long  as  life  itself,  and 
must  beware  lest  by  any  attempt  at  finality  we  should 
check  a  development  which  is  the  necessary  concomitant 
of  health  and  energy. 

The  second  is  that  the  special  point  wherein  the 
Roman  system  had  an  advantage  over  our  own,  and 
indeed  over  that  of  all  modern  countries,  was  the  exist- 
ence of  an  organ  of  government  specially  charged  with 
the  duty  of  watching,  guiding,  and  from  time  to  time 
summing  up  in  a  concise  form,  the  results  of  the  natural 
development  of  the  law.  The  Praetor  with  his  Edict 
is  the  central  figure  in  Roman  legal  history,  and  a  unique 
figure  in  the  history  of  human  progress.  The  Roman 
statutes  of  the  Republic  were  not,  except  perhaps  in 
their  brevity,  superior  to  our  statutes  down  to  the  time 
of  George  III.  The  imperial  constitutions,  especially 
the  later  ones,  are  inferior  in  substance  and  perhaps 
not  better  in  form  than  our  later  English  statutes.  The 
treatises  of  the  Roman  lawyers,  if  more  convenient  in 
point  of  form  than  our  volumes  of  Reports,  contained 
discussions  not  more  acute  and  subtle,  nor  so  great  a 
wealth  of  matter ;  and  they  were  not  more  free  from  dis- 
crepancies. But  neither  England  nor  the  United  States 
has  ever  had  or  can  have  any  one  who  could  conduct 
legal  reforms  in  such  a  way  as  did  the  Praetor. 


AND  i:\GLISH  LBQIBLATWX  741 

A  third  reflection  is  that  the  various  departments  of 
legislation  are  not  equally  well  suited  to  be  developed 
by  one  and  the  same  organ  of  legislation.  Administra- 
tive law  can  hardly  be  created  except  by  the  direct 
action  of  the  sovereign  power  in  the  State,  whether  the 
monarch  or  the  Legislative  Assembly  acting  at  the  in- 
stance of  the  Executive.  In  every  country  that  kind  of 
law  has  been  so  created,  and  its  growth  belongs  to 
a  comparatively  late  stage  in  the  progress  of  a  State. 
As  the  need  for  a  more  elaborate  civil  and  military 
administration  increases,  so  does  the  organ  appropriate 
for  legislating  on  such  matters  become  evolved.  A  very 
large  part  of  recent  legislation  in  England  l  and  in  the 
United  States  belongs  to  this  category,  and  similarly 
a  large  part  of  the  Codes  of  Theodosius  II  and  of  Jus- 
tinian are  filled  by  such  matters. 

A  system  of  procedure,  civil  and  criminal,  with  the 
judicial  machinery  required  to  work  it,  may  be  created 
either  by  the  direct  legislative  action  of  the  supreme 
power,  or  by  custom  and  the  action  of  the  Courts.  Both 
at  Rome  and  in  England  it  was  through  usage  and  by 
the  Courts  themselves  that  the  earlier  system  was  slowly 
moulded;  both  at  Rome  and  in  England  it  was  direct 
legislation  that  established  the  later  system.  Functions 
discharged  by  both  the  Praetor  and  the  Chancellor  are 
the  offspring  of  custom  and  not  of  statute.  But  the 
judicial  system  of  the  Roman  Empire,  as  well  as  the 
mode  of  procedure  by  formulae  (established  by  the 
Lex  Acbutia  probably  about  B.C.  200)  and  the  criminal 
quacstioncs  perpctuac  of  the  later  Republic,  and  simi- 
larly all  the  changes  made  in  English  procedure  and 
the  English  Courts  during  the  last  two  centuries,  cul- 
minating in  the  sweeping  reconstruction  effected  by 
the  Judicature  Act  of  1873,  were  the  work  of  direct 
legislation. 

Criminal  law  has  everywhere  grown  out  of  Custom, 
and  has  in  all  civilized  States  been  largely  dealt  with  by 

i  According  to  Sir  C.  P.  Ilbert  (op.  cit.)  nine-tenths. 


742  ROMAN  AND  ENGLISH  LEGISLATION 

direct  legislation.  In  most  European  countries  it  has 
been  codified  by  statute,  to  the  general  satisfaction  of 
the  people;  and  the  conspicuous  success  of  the  Indian 
Penal  Code  shows  that  English  criminal  law  is  suscepti- 
ble of  being  so  treated.  Thus  we  may  say  that  all  the 
branches  of  law  which  I  have  enumerated  are  fit  matters 
for  direct  legislation  by  the  sovereign  power,  and  less 
fit  to  be  left  to  jurists  and  magistrates. 

As  to  private  law  in  the  narrower  sense  of  the  term, 
the  law  of  property,  of  inheritance,  of  contracts,  of  torts, 
and  so  forth,  it  has  already  been  remarked  that  it  was 
at  Rome  and  is  in  England  the  offspring  of  Custom,  that 
is  to  say,  of  the  usages  of  the  community,  and  of  the 
reflections  and  discussions  of  lawyers,  bringing  these 
usages  into  a  precise  shape  and  developing  them  in 
points  of  detail,  together  with  the  decisions  of  judges 
stamping  them  as  recognized  in  those  points  of  detail  as 
well  as  in  their  general  principles.  As  time  went  on, 
direct  legislation  was  more  and  more  resorted  to  both  at 
Rome  and  in  England  either  to  define  or  to  change  the 
law  which  jurists,  magistrates,  and  judges  had  wrought 
out  of  materials  provided  by  custom.  It  was  often 
necessary,  because  there  were  faults  in  the  law  which 
the  Courts  had  not  the  power,  even  if  they  had  the 
wish,  to  alter.  Yet  direct  legislation  has  seldom  been 
successful  except  either  in  expunging  such  faults,  or  in 
systematizing  what  was  already  well  settled.  Compare, 
for  instance,  the  modern  law  of  negotiable  instruments, 
built  up  by  the  custom  of  merchants  and  the  Courts,  and 
not  reduced  to  the  form  of  a  statute  till  nearly  every 
question  had  been  thoroughly  worked  out  by  lawyers 
in  the  course  of  judicial  practice,  with  the  law  of  Joint 
Stock  Companies, -which  is  mainly  the  product  of  direct 
legislation.  The  former  is  as  definite  and  practically 
convenient  as  the  latter  is  confused  and  unsatisfactory. 
It  is  quite  true  that  the  latter  topic  is  one  which  could 
not  well  have  been  left  to  usage  and  the  Courts.  Yet 
such  a  comparison  indicates  the  difficulties  which  con- 


ROMAN  AND  ENGLISH  LEGISLATION  743 

front  a  legislature  when  it  attempts  to  create  de  novo, 
that  is  to  say,  on  general  principles  and  without  much 
help  from  custom.  The  law  of  Joint  Stock  Companies 
with  limited  liability  is  one  of  those  departments  which 
needs  to  be  treated  by  the  method  of  constant  experi- 
ment, varying  from  time  to  time  the  remedies  needed 
against  the  new  forms  in  which  fraud  and  trickery  ap- 
pear, and  meeting  by  fresh  provisions  the  devices  by 
which  crafty  men  evade  the  rules  intended  to  protect 
the  unwary1. 

A  magistrate  like  the  Roman  Praetor  might  perhaps 
deal  with  such  a  branch  of  law  more  effectively  than 
can  either  an  English  judge  or  the  English  Parliament 
— more  effectively  than  a  judge,  because  his  powers 
would  be  wider;  more  effectively  than  Parliament,  be- 
cause be  could  more  promptly  and  easily  drop  a  pro- 
vision which  had  proved  inefficient,  and  try  the  working 
of  a  new  one  without  purporting  to  make  it  a  part  of 
the  permanent  law  of  the  land. 

It  follows  from  these  considerations  that  some 
branches  of  the  law  are  much  more  fit  than  others  to 
be  embodied  in  a  code,  and  that  the  discussions,  more 
frequent  and  more  animated  thirty  years  ago  than  they 
are  to-day,  as  to  the  merits  and  drawbacks  of  codifica- 
tion, ought  to  have  distinguished  more  carefully  than 
they  did  between  the  adaptability  to  diverse  depart- 
ments of  law  of  a  system  of  rules  enacted  in  a  form 
intended  to  be  final.  We  may  hope  to  have  some  light 
upon  this  subject  from  the  working  of  the  new  German 
Code.  In  any  case,  it  may  be  suggested  that  a  society 
in  which  the  ideas  and  habits  that  relate  to  any  one  side 
of  its  life  are  changing — as  for  instance  those  relating  to 
the  civil  status  of  women  have  changed  in  England 
during  the  last  fifty  years,  or  in  which  the  methods  of 
business  are  changing,  as  those  relating  to  joint  stock 

1  It  must,  however,  be  added  that  the  difficulties  which  surround  this  most  un- 
satisfactory branch  of  our  law  are  partly  due  to  the  recurring  collision  of  two  dif- 
ferent theories,  that  of  Caveat  emptor  (let  the  buyer  beware)  and  that  which  would 
exact  uberrima  fides  (the  amplest  good  faith)  from  a  company  promoter  or  director 


744  ROMAN  AND  ENGLISH  LEGISLATION 

enterprise  have  changed  both  in  England  and  America 
—does  ill  to  stereotype  in  a  form  difficult  to  amend  the 
particular  legal  rules  which  govern  it  at  any  given  mo- 
ment, however  adequately  that  form  may  for  the  moment 
embodv  the  substance  of  those  rules. 


XV 

THE  HISTORY  OF  LEGAL  DEVEL- 
OPMENT AT  ROME  AND  IN 
ENGLAND 

IN  the  last  preceding  Essay  the  organs  of  legislation, 
and  the  methods  whereby  they  were  worked  at  Rome 
and  in  England  respectively,  were  discussed  and  com- 
pared. A  consideration  of  the  course  which  legal  change 
took,  in  its  various  phases  of  development,  reform  or 
decay,  may  be  completed  by  inquiring  into  the  general 
causes  and  forces  which  determined  and  guided  the 
process  of  change.  To  justify  the  selection  of  Rome  and 
England  for  comparison  it  is  necessary  to  recur  to  two 
points  only  in  which  the  history  of  institutions  in  these 
two  States  presents  a  remarkable  analogy.  Both  have 
been  singularly  independent  of  outside  influences  in  the 
development  of  their  political  character  and  their  legal 
institutions.  The  only  influence  that  seriously  told  on 
Rome  was  that  of  the  Greeks:  yet  how  thoroughly 
Roman  all  the  institutions  that  ever  had  been  Roman 
remained  down  till  the  second  century  of  the  Empire, 
after  Hellenic  influence  had  for  more  than  two  hundred 
years  been  playing  freely  and  fully  upon  literature  and 
thought!  So  English  institutions  have  been  far  less 
affected  by  external  influences  than  have  been  those  of 
any  other  part  of  European  Christendom.  In  France, 
Italy,  Germany,  and  Spain,  the  traces  of  Roman  do- 
minion were  never  obliterated,  and  Roman  law  too, 


746  LEGAL  DEVELOPMENT 

both  through  its  traditions  and  through  the  writings 
which  embody  it,  has  always  been  a  more  potent  factor 
than  it  ever  was  here.  These  countries  have,  moreover, 
borrowed  more  from  each  other  than  we  have  done  from 
any  one  of  them,  except,  perhaps,  in  the  days  when  Nor- 
mandy gave  a  Continental  tinge  to  the  immature  feu- 
dality of  England.  And,  secondly,  both  Rome  and  Eng- 
land have  extended  their  institutions  over  vast  territories 
lying  beyond  their  own  limits.  Each  has  been  a  con- 
quering and  ruling  power,  and  the  process  by  which  each 
grew  into  a  World  State  from  being,  the  one  a  City  and 
the  other  a  group  of  small  but  widely  scattered  rural 
tribes,  offers  striking  points  of  resemblance  as  well  as 
of  contrast.  I  might  add  that  there  are  similarities  in 
the  character  of  the  two  nations,  similarities  to  which 
their  success  in  conquering  and  ruling  is  due.  But,  for 
the  moment,  it  is  rather  to  law  and  institutions  than 
to  character  that  I  seek  to  direct  the  reader's  attention. 

Since  the  law  of  every  country  is  the  outcome  and 
result  of  the  economic  and  social  conditions  of  that 
country  as  well  as  the  expression  of  its  intellectual 
capacity  for  dealing  with  these  conditions,  the  causes 
which  modify  the  law  are  usually  to  be  sought  in  changes 
which  have  passed  upon  economic  and  social  pheno- 
mena. When  new  relations  between  men  arise,  or  when 
the  old  relations  begin  to  pass  into  new  forms,  law  is 
called  in  to  adjust  them.  The  part  played  by  speculative 
theorists  or  by  scientific  reformers  who  wish  to  see  the 
law  made  more  clear  and  rational  is  a  relatively  small 
factor  in  legal  change,  and  one  which  operates  only  at 
rare  moments.  The  process  of  development,  if  not 
wholly  unconscious,  is  yet  spontaneous  and  irregular. 
Alterations  are  made,  not  upon  any  general-  plan  or 
scheme,  but  as  and  when  the  need  for  them  becomes 
plain,  or  when  it  has  at  least  become  the  interest  of  some 
ruling  person  or  class  to  make  them. 

The  relation  of  the  general  history,  political,  econo- 
mic, and  social,  to  changes  in  laws  and  institutions  is, 


LEGAL  DEVELOPMENT  747 

best  seen  at  certain  definite  epochs.  It  is  indeed  true 
that  in  nations  which  have  reached  a  certain  stage  of 
civilization  the  conditions  of  life,  and  the  relations  of 
men  and  classes  to  one  another,  never  remain  quite  the 
same  from  generation  to  generation.  Every  mechanical 
discovery,  every  foreign  war  or  domestic  insurrection, 
every  accession  or  loss  of  territory,  every  religious  or 
intellectual  movement  leaves  things  somewhat  different 
from  what  it  found  them.  Nevertheless,  though  the  pro- 
cess of  change  is,  except  in  savage  or  barbarous  peo- 
ples, practically  constant  and  uninterrupted,  it  becomes 
at  certain  particular  moments  much  more  swift  and  pal- 
pable, rushing,  so  to  speak,  through  rapids  and  over 
cataracts  instead  of  gliding  on  in  a  smooth  and  equable 
flow.  These  are  the  moments  when  a  nation,  or  its 
ruler,  perceives  that  the  economic  or  social  transforma- 
tions which  have  been  taking  place  require  to  be  recog- 
nized and  dealt  with  by  corresponding  changes  in  law 
and  institutions,  or  when  some  political  disturbance,  or 
shifting  of  power  from  one  class  or  group  to  another, 
supplies  the  occasion  for  giving  effect  to  views  or  senti- 
ments hitherto  repressed.  Accordingly  it  is  profitable 
to  give  special  attention  to  these  transitional  epochs, 
because  it  is  in  them  that  the  relation  between  causes 
and  consequences  can  be  studied  most  easily  and  on  the 
largest  scale.  Let  us  see  what  are  the  epochs  in  Roman 
and  in  English  history  which  may  be  selected  as  those 
marked  by  conspicuous  legal  or  institutional  changes 
before  we  examine  the  relations  of  these  changes  to  the 
forces  which  brought  them  about. 

I.  FIVE  CHIEF  EPOCHS  OF  LEGAL  CHANGE  AT  ROME. 

In  the  thousand  years  of  Roman  history  that  lie  be- 
tween the  first  authentic  records  of  the  constitution  and 
laws  of  the.  city,  say  451  B.C.,  when  the  Decemviral  Com- 
mission, which  produced  the  laws  of  the  Twelve  Tables, 
was  appointed,  and  565  A.D.,  when  Justinian  died,  hav- 


748  LEGAL  DEVELOPMENT 

ing  completed  his  work  of  codification  and  new  legisla- 
tion ],  we  may  single  out  five  such  epochs. 

1.  The  epoch  of  the  Decemviral  Legislation,  when 
many  of  the  old  customs  of  the  nation,  which  had  been 
for  the  most  part  preserved  by  oral  tradition,  were  writ- 
ten down,  being  no  doubt  modified  in  the  process. 

2.  The  days  of  the  First  and  Second  Punic  Wars,  when 
the  growth  of  population  and  trade,  the  increase  of  the 
number  of  foreigners  resident  in  Rome,  and  the  con- 
quest by  Rome  of  territories  outside  Italy,  began  to 
induce  the  development  of  the  Praetorship  as  an  office 
for  expanding  and  slowly  remodelling  the  law. 

3.  The  end  of  the  Republic  and  early  days  of  the  Em- 
pire, when  there  was  a  brilliant  development  of  juridical 
literature,  when  the  opinions  of  selected  jurists  received 
legal  authority  from  the  Emperor's  commission,  when 
the  Senate  was  substituted  for  the  popular  assemblies  as 
the  organ  of  legislation,  and  when  the  administration  of 
the  provinces  was  resettled  on  a  better  basis — all  these 
changes  inducing  a  more  rapid  progress  of  legal  reform. 

4.  The  reigns  of  Diocletian  and  Constantine,  when 
imperial  legislation  took  a  fresh  and  vigorous  start,  and 
when   the   triumph   of   Christianity   brought   a   new,   a 
powerful,  and  a  widely  pervasive  force  into  the  field  of 
politics  and  legislation. 

5.  The  reign  of  Justinian,  when  the  plan  of  codifica- 
tion whose  outlines  Julius  Caesar  had  conceived,  and 
which  Theodosius  II  had  done  something  to  carry  out, 
was  at  last  completed  by  the  inclusion  of  the  whole  law 
of  Rome  in  two  books  containing  the  pith  of  the  then 
existing  law,  and  when  many  sweeping  reforms  were 
effected  by  new  legislation. 

It  is  less  easy  to  fix  upon  epochs  of  conspicuous 


1  It  is  convenient  to  stop  with  Justinian,  because  he  gave  the  law  the  shape  in 
which  it  has  influenced  modern  Europe,  and  because  our  historical  data  became 
much  more  scanty  after  his  time.  But  of  course  the  history  of  the  law  goes  on  to 
A.D.  1204,  and  in  a  sense  even  to  A.D.  1453,  in  an  unbroken  stream,  the  codes  issued 
by  the  later  Emperors,  and  especially  the  Basilica  of  Leo  the  Philosopher,  being 
based  upon  Justinian's  redaction. 


LEGAL  DEVELOPMENT  749 

change  in  English  legal  institutions  and  law,  because 
English  development  has  been  on  the  whole  more  gra- 
dual, and  because  the  territorial  limits  of  the  area  af- 
fected by  change  have  not  expanded  to  anything  like 
the  same  extent  as  did  the  territories  that  obeyed  Rome. 
Rome  was  a  City  which  grew  to  be  the  civilized  world: 
the  Urbs  became  Orbis  Tcrrarum.  The  English  were, 
and  remain,  a  people  inhabiting  the  southern  part  of 
an  island,  and  beyond  its  limits  they  have  expanded 
(except  as  respects  Ireland),  not  by  taking  in  new  ter- 
ritories as  parts  of  their  State,  but  by  planting  semi- 
dependent  self-governing  States  which  reproduce  Eng- 
land l.  However,  one  may,  for  the  sake  of  a  comparison 
with  Rome,  take  the  five  following  epochs  as  those  at 
which  the  process  of  change  became  the  most  swift  and 
the  most  effective  for  destruction  and  creation. 

II.  FIVE  EPOCHS  OF  LEGAL  CHANGE  IN  ENGLAND. 

1.  The  time  of  Henry  II,  when  the  King's  Courts  be- 
came organized,  and  began  to  evolve  a  Common  Law 
for  the  whole  realm  out  of  the  mass  of  local  customs. 

2.  The  times  of  Edward  I  and  Edward  III,  when  the 
solidification  of  the  kingdom  saw  the  creation  of  a  partly 
representative  legislature,  the  enactment  of  important 
statutes,  and  the  establishment  of  a  vigorous  organ  for 
the   development   and  amendment   of  the   law   in   the 
Chancellorship. 

3.  The  time  of  Henry  VIII  and  Edward  VI,  when  the 
progress    of    society    and    an    ecclesiastical    revolution 
caused  the  passing  of  several  sweeping  legal  reforms, 
separated  the  courts  and  the  law  of  England  from  a 
system  of  jurisprudence  which  had  influenced  it  in  com- 
mon with  the  rest  of  Western  Christendom,  and  perma- 
nently reduced  the  power  of  the  clergy  and  of  clerical 
ideas. 

1  I  do  not  include  India  or  the  Crown  Colonies,  because  the  population  of  these 
is  not  English. 


750  LEGAL  DEVELOPMENT 

4.  The  epoch  of  the  Great  Civil  War  and  Revolution, 
when  legislative  authority,  hitherto  shared  or  disputed 
by  the  Crown  and  the  Houses  of  Parliament,  passed 
definitely  to  the  latter,  and  particularly  to  the  popular 
branch  of  Parliament,  and  when  (as  a  consequence)  the 
relation  of  the  Monarch  to  the  landholding  aristocracy, 
and  that  of  the  State  to  its  subjects  in  religious  matters, 
underwent  profound  alterations. 

5.  The  reigns  of  William  IV  and  Victoria,  when  the 
rapid  growth  of  manufacturing  industry,  of  trade,  and  of 
population,  coupled  with  the  influence  as  well  of  new 
ideas  in  the  sphere  of  government  as  of  advances  made 
in  economic  and  social  science,  has  shaken  men  loose 
from  many  old  traditions  or  prejudices,  and  has,  while 
rendering  much  of  the  old  law  inapplicable,  made  a  great 
deal  of  new  legislation  indispensable. 

Now  let  us  consider  what  are  the  forces,  influences, 
or  conditions  which  at  all  times  and  everywhere  become 
the  sources  and  determining  causes  of  changes -in  laws 
and  institutions,  these  latter  being  that  framework  which 
society  constructs  to  meet  its  needs,  whether  admini- 
strative or  economic  or  social. 

Five  such  determining  causes  may  be  singled  out  as 
of  special  importance.  They  are  these. 

1.  Political  changes,  whether  they  consist  in  a  shift- 
ing of  power  as  between  the  classes  controlling  the  gov- 
ernment of  a  country,  or  affect  the  structure  of  the 
governmental  machinery  itself,  as  for  instance  by  the 
substitution  of  a  monarch  for  an  assembly  or  of  an  as- 
embly  for  a  monarch. 

2.  The  increase  of  territory,  whether  as  added  to  and 
incorporated  in  the  pre-existing  home  of  a  nation  or  as 
constituting  a  subject  dominion. 

3.  Changes    in    religion,    whether    they    modify    the 
working    of   the    constitution    of    the    country    or    in- 
volve the  abolition  of  old  laws  and  the  enactment  of  new 
ones. 

4.  Economic  changes,  such  as  the  increase  of  indus- 


LEGAL  DEVELOPMENT  7*L 

trial  production  or  the  creation  of  better  modes  of  com- 
munication, with  the  result  of  facilitating  the  exchange 
of  commodities. 

5.  The  progress  of  philosophic  or  scientific  thought, 
whether  as  enouncing  new  principles  which  ultimately 
take  shape  in  law,  or  as  prompting  efforts  to  make  the 
law  more  logical,  harmonious  and  compendious. 

The  influence  of  other  nations  might  be  added,  as  a 
sixth  force,  but  as  this  usually  acts  through  speculative 
thought,  less  frequently  by  directly  creating  institutions 
and  laws,  it  may  be  deemed  a  form  of  No.  5. 

The  two  last  of  these  five  sources  of  change,  viz.  com- 
merce and  speculative  or  scientific  thought,  are  con- 
stantly, and  therefore  gradually  at  work,  while  the  other 
three  usually,  though  not  invariably,  operate  suddenly 
and  at  definite  moments.  All  have  told  powerfully  both 
on  Rome  and  on  England.  But  as  the  relative  import- 
ance of  each  varies  from  one  country  to  another,  so  we 
shall  discover  that  some  have  counted  for  more  in  the 
case  of  Rome,  some  in  that  of  England.  The  differences 
throw  an  instructive  light  on  the  annals  of  the  two 
nations. 

III.  OUTLINE  OF  LEGAL  CHANGES  AT  ROME. 

The  legal  history  of  Rome  begins  with  the  law  of 
the  Twelve  Tables.  This  remarkable  code,  which,  it 
need  hardly  be  said,  was  neither  a  code  in  the  modern 
sense,  nor  in  the  main  new  law,  but  rather  a  concise 
and  precise  statement  of  the  most  important  among  the 
ancient  customs  of  the  people,  dominated  the  whole  of 
the  republican  period,  and  impressed  a  peculiar  cha- 
racter upon  the  growth  of  Roman  law  from  the  begin- 
ning till  the  end  of  the  thousand  years  we  are  regarding. 
It  gave  a  sort  of  unity  and  centrality  to  that  growth 
which  we  miss  in  many  other  countries,  England  in- 
cluded, for  all  Roman  statutes  bearing  on  private  law 
were  passed  with  reference  to  the  Twelve  Tables, 


752  LEGAL  DEVELOPMENT 

nearly  all  commentaries  grouped  themselves  round  it, 
and  when  a  new  body  of  law  that  was  neither  statute 
nor  commentary  began  to  spring  up,  that  new  law  was 
built  up  upon  lines  determined  by  the  lines  of  the  Twelve 
Tables,  since  the  object  was  to  supply  what  they  lacked 
or  to  modify  their  enactments  where  these  were  too 
harsh  or  too  narrow.  Its  language  became  a  model  for 
the  form  which  later  statutes  received.  It  kept  before 
the  minds  of  jurists  and  reformers  that  ideal  of  a  sys- 
tematic and  symmetrical  structure  which  ultimately  took 
shape  in  the  work  of  Theodosius  II  and  Justinian.  Now 
the  law  of  the  Twelve  Tables  was  primarily  due  to  po- 
litical discontent.  The  plebeians  felt  the  hardship  of 
being  ruled  by  customs  a  knowledge  of  which  was  con- 
fined to  the  patrician  caste,  and  of  being  thereby  left  at 
the  mercy  of  the  magistrate,  himself  a  patrician,  who 
could  give  his  decision  or  exert  his  executive  power  at 
his  absolute  discretion,  because  when  he  declared  him- 
self to  have  the  authority  of  the  law,  no  one,  outside 
the  privileged  caste  he  belonged  to,  could  convict  him 
of  error.  Accordingly  the  plebs  demanded  the  creation 
of  a  commission  to  draft  laws  defining  the  powers  of 
the  Consuls,  and  this  demand  prevailed,  after  a  long 
struggle,  in  the  creation  of  the  Decemvirs,  who  were 
appointed  to  draft  a  body  of  general  law  for  the  nation. 
This  draft  was  enacted  as  a  Statute,  and  became  thence- 
forth, in  the  words  of  Livy l,  '  the  fountain  of  all  public 
and  private  law/  Boys  learnt  it  by  heart  down  to  the 
days  of  Cicero,  and  he,  despite  his  admiration  for  things 
Greek,  declares  it  to  surpass  the  libraries  of  all  the 
philosophers  2. 

For  some  generations  there  seem  to  have  been  com- 
paratively few  large  changes  in  private  law,  except  that 

1  '  Decem  tabularum  leges  quae  nunc  quoque  in  hoc  immense  aliarum  super  alias 
acervatarum  legum  cumulo  fons  omnis  public!  privatique  est  iuris'  (iii.  24). 

2  '  Bibliothecas  mehercule  omnium  philosophorum  unus  mihi  videtur  xii  tabu- 
larum libellus,  siquis  legum  f ontes  et  capita  viderit,  et  auctoritatis  pondere  et  utili- 
tatis  ubertate  superare '  (De  Orat.  i.  44).    An  odd  comparison,  and  one  in  which 
there  is  more  of  patriotism  than  of  philosophy. 


LEGAL  DEVELOPMENT  753 

declaration  of  the  right  of  full  civil  intermarriage  be- 
tween patricians  and  plebeians,  which  the  Twelve  Tables 
had  denied.  But  the  knowledge  of  the  days  on  which 
legal  proceedings  could  properly  be  taken  remained 
confined  to  the  patricians  for  nearly  a  century  and  a 
half  after  the  Decemvirs.  The  plebs  had,  however,  been 
winning  political  equality,  and  three  or  four  years  after 
the  time  when  the  clerk  Flavius  revealed  these  pontifical 
secrets  it  was  completed  by  the  admission  of  the  ple- 
beians to  the  offices  of  pontiff  and  augur. 

Meanwhile  Rome  was  conquering  Italy.  The  defeat 
of  Pyrrhus  in  B.C.  275  marks  the  virtual  completion  of 
this  process.  A  little  later,  the  First  Punic  War  gave 
her  most  of  Sicily  as  well  as  Sardinia  and  Corsica,  and 
these  territories  became  provinces,  administered  by 
magistrates  sent  from  Rome.  She  was  thus  launched 
on  a  policy  of  unlimited  territorial  expansion,  and  one 
of  its  first  results  was  seen  in  two  remarkable  legal 
changes.  The  increase  in  the  power  and  commerce  of 
Rome,  due  to  her  conquests,  had  brought  a  large  num- 
ber of  persons  to  the  city,  as  residents  or  as  sojourners, 
who  were  not  citizens,  and  who  therefore  could  not  sue 
or  be  sued  according  to  the  forms  of  the  law  proper 
to  Romans.  It  became  necessary  to  provide  for  the  liti- 
gation to  which  the  disputes  of  these  aliens  (peregrini) 
with  one  another  or  with  Romans  gave  rise,  and  accord- 
ingly a  Magistrate  (Praetor  pcregrinus)  was  appointed 
whose  special  function  it  became  to  deal  with  such  dis- 
putes. He  was  a  principal  agent  in  building  up  by 
degrees  a  body  of  law  and  a  system  of  procedure  out- 
side the  old  law  of  Rome,  which  received  the  name  of 
lus  Gentium  (the  law  of  the  nations)  as  being  supposed 
to  embody  or  be  founded  on  the  maxims  and  rules  com- 
mon, to  the  different  peoples  who  lived  round  Rome, 
or  with  whom  she  came  in  contact1.  Through  the 
action  of  the  older  Urban  Praetor  much  of  this  ius 
gentium  found  its  way  into  the  law  administered  to  the 

>  As  to  the  ius  gentium  see  Essay  XI,  p.  570  sqq. 
48 


754  LEGAL  DEVELOPMENT 

citizens,  in  the  way  described  in  the  last  preceding  Essay. 
Similarly  the  Proconsuls  and  Propraetors,  who  held 
their  courts  in  the  subject  provinces,  administered  in 
those  provinces,  besides  the  pure  Roman  law  applicable 
to  citizens,  a  law  which,  though  much  of  it  consisted  of 
the  local  laws  and  customs  of  the  particular  province, 
had,  nevertheless,  a  Roman  infusion,  and  was  probably 
in  part,  like  the  ins  gentium,  generalized  from  the  cus- 
toms found  operative  among  different  peoples,  and 
therefore  deemed  to  represent  general  principles  of  jus- 
tice fit  to  be  universally  applied.  The  Edicts  which 
embodied  the  rules  these  magistrates  applied  became  a 
source  of  law  for  the  respective  provinces  1. 

These  remarkable  changes,  which  may  be  said  to  be- 
long to  the  period  which  begins  with  the  outbreak  of 
the  First  Punic  War  (B.C.  264),  started  Roman  law  on 
a  new  course  and  gave  birth  to  a  new  set  of  institutions 
whereby  new  territories,  ultimately  extended  to  em- 
brace the  whole  civilized  world,  were  organized  and 
ruled.  It  was  through  these  changes  that  the  law  and 
the  institutions  of  the  Italian  City  became  so  moulded 
as  to  be  capable  not  only  of  pervading  and  transforming 
the  civilizations  more  ancient  than  her  own,  but  of  de- 
scending to  and  influencing  the  modern  world.  Now 
these  changes,  like  those  which  marked  the  period  of 
the  Twelve  Tables,  had  their  origin  in  political  events. 
In  the  former  case  it  was  internal  discontent  and  unrest 
that  were  the  motive  forces,  in  the  latter  the  growth  of 
dominion  and  of  trade,  trade  being  the  consequence, 
not  so  much  of  industrial  development  as  of  dominion. 
But  in  both  cases — and  this  is  generally  true  of  the 
ancient  world  as  compared  with  the  modern — political 
causes  play  a  relatively  greater  part  than  do  causes 
either  of  an  economic  or  an  intellectual  and  speculative 
order  2. 

1  As  to  this  see  Essay  II,  pp.  77,  78. 

*  Ot  course  I  do  not  mean  to  disparage  the  immense  importance  of  economic 
causes  always  and  everywhere,  but  in  the  ancient  world,  where  communities  were 
mostly  small,  they  tended  more  quickly  to  engender  political  revolutions,  and  thus 


LEGAL  DEVELOPMENT  755 

How  much  is  to  be  set  down  to  external  influences? 
The  Roman  writers  tell  us  of  the  sending  out  of  a 
body  of  roving  commissioners  to  examine  the  laws  of 
Athens  and  other  Greek  cities  to  collect  materials  for 
the  preparation  of  the  Twelve  Tables.  So  too  the  con- 
tact of  Rome  with  the  Greek  republics  of  Southern 
Italy  in  the  century  before  the  Punic  Wars  must  have 
affected  the  Roman  mind  and  contributed  to  the  ideas 
which  took  shape  in  the  ins  gentium.  Nevertheless  any 
one  who  studies  the  fragments  of  the  Twelve  Tables 
will  find  in  them  comparatively  few  and  slight  traces  of 
any  foreign  influence;  and  one  may  say  that  both  the 
substance  of  the  Roman  law  and  the  methods  of  pro- 
cedure it  followed  remain,  down  till  the  end  of  the  Re- 
public, so  eminently  national  and  un-Hellenic  in  their 
general  character  that  we  must  assign  a  secondary  part 
to  the  play  of  foreign  ideas  upon  them. 

The  next  epoch  of  marked  transition  is  that  when  the 
Empire  of  Rome  had  swollen  to  embrace  the  whole  of 
the  West  except  Britain  and  Western  Mauretania,  and 
the  whole  of  the  known  East  except  Parthia1.  It  was 
the  epoch  when  the  Republican  Constitution  had  broken 
down,  not  merely  from  internal  commotions,  but  under 
the  weight  of  a  stupendous  dominion,  and  it  was  also  the 
epoch  when  the  philosophies  of  Greece  had  made  the 
Roman  spirit  cosmopolitan,  and  dissolved  the  intense 
national  conservatism  in  legal  matters  which  distin- 
guished the  older  jurists.  Here,  therefore,  two  forces 
were  at  work.  The  one  was  political.  It  laid  the  founda- 
tions of  new  institutions,  which  ripened  into  the  auto- 
cracy of  the  Empire.  It  substituted  the  Senate  for  the 
popular  Assembly  as  the  organ  of  legislation.  It  gave 

their  action  became  involved  with  politics.  In  the  modern  world,  where  nations 
are  mostly  large  and  political  change  is  usually  more  gradual,  economic  factors  fre- 
quently tell  upon  society  and  affect  the  working  of  institutions  without  leading  to 
civil  strife.  The  more  the  world  develops  and  settles  down,  and  the  further  it 
moves  away  from  its  primitive  conditions,  the  greater  becomes  the  relative  signifi- 
cance of  the  economic  elements. 

1  '  Parthos  atque  Britannos'  are  aptly  coupled  by  Horace  as  the  two  peoples  that 
remained  outside  the  Empire. 


756  LEGAL  DEVELOPMENT 

the  head  of  the  State  the  power  of  practically  making 
law,  which  he  exercised  in  the  first  instance  partly  as 
a  magistrate,  partly  through  the  practice  of  issuing  to 
selected  jurists  a  commission  to  give  answers  under  his 
authority1.  The  other  force  was  intellectual.  It  made 
the  amendment  of  the  law,  in  a  liberal  and  philosophical 
sense,  go  forward  with  more  boldness  and  speed  than 
ever  before,  until  the  application  of  the  new  principles 
had  removed  the  cumbrousness  and  harshness  of  the 
old  system.  But  it  should  be  remembered  that  this 
intellectual  impulse  drew  much  of  its  power  from  politi- 
cal causes,  because  the  extension  of  the  sway  of  Rome 
over  many  subject  peoples  had  accustomed  the  Romans 
to  other  legal  systems  than  their  own,  and  had  led  them 
to  create  bodies  of  law  in  which  three  elements  were 
blent — the  purely  Roman,  the  provincial,  and  those 
general  rules  and  maxims  of  common-sense  justice  and 
utility  which  were  deemed  universally  applicable,  and 
formed  a  meeting-ground  of  the  Roman  and  the  pro- 
vincial notions  and  usages.  So  here  too  it  is  political 
events  that  are  the  dominant  and  the  determining  factor 
in  the  development  both  of  private  law  and  of  the  im- 
perial system  of  government,  things  destined  to  have 
a  great  future,  not  only  in  the  form  of  concrete  institu- 
tions adopted  by  the  Church  and  by  mediaeval  mo- 
narchy, but  also  as  the  source  of  creative  ideas  which 
continued  to  rule  men's  minds  for  many  generations. 

Nearly  three  centuries  later  we  come  to  another 
epoch,  when  two  forces  coincide  in  effecting  great 
changes  in  law  and  in  administration.  The  storms  that 
shook  and  seemed  more  than  once  on  the  point  of  shat- 
tering the  fabric  of  the  Empire  from  the  time  of  Severus 
Alexander  to  that  of  Aurelian  (A.D.  235  to  270),  had 
shown  the  need  for  energetic  measures  to  avert  destruc- 
tion; and  the  rise  to  power  of  men  of  exceptional  capa- 
city and  vigour  in  the  persons  of  Diocletian  and  Con- 
stantine  enabled  reforms  to  be  effected  which  gave  the 

i  Described  in  the  last  preceding  Essay,  pp.  677,  678. 


LEGAL  DEVELOPMENT  757 

imperial  government  a  new  lease  of  life,  and  made  its 
character  more  purely  despotic.  Therewith  came  the 
stopping  of  the  persecution  of  the  Christians,  and  pre- 
sently the  recognition  of  their  religion  as  that  which  the 
State  favoured,  and  which  it  before  long  began  to  pro- 
tect and  control.  The  civil  power  admitted  and  sup- 
ported the  authority  of  the  bishops,  and  when  doctrinal 
controversies  distracted  the  Church,  the  monarchs,  be- 
ginning from  Constantine  at  the  Council  of  Nicaea,  en- 
deavoured to  compose  the  differences  of  jarring  sections. 

These  changes  told  upon  the  law  as  well  as  upon  in- 
stitutions. New  authorities  grew  up  within  the  Church, 
and  these  authorities,  after  long  struggles,  obtained 
coercive  power.  Not  only  was  the  spirit  of  legislation 
in  such  subjects  as  slavery  and  the  family  altered — 
marriage  and  divorce,  for  instance,  began  to  be  regarded 
with  new  eyes — but  a  fresh  field  for  legislation  was 
opened  up  in  the  regulation  of  various  ecclesiastical  or 
semi-ecclesiastical  matters,  as  well  as  in  the  encourage- 
ment or  repression  of  certain  religious  opinions.  The 
influence  on  law  of  Greek  customs,  which  seemed  to 
have  been  expunged  by  the  extension  of  citizenship  to 
all  subjects  a  century  before  Constantine,  makes  itself 
felt  in  his  legislation. 

Besides  these  influences  belonging  to  the  sphere  of 
politics  and  religion,  economic  causes,  less  conspicuous, 
but  of  grave  moment,  had  also  been  at  work  in  under- 
mining the  social  basis  of  the  State  and  inducing  efforts 
to  apply  new  legislative  remedies.  Slavery  and  the  de- 
cline of  agriculture,  particularly  in  the  Western  half 
of  the  Empire,  throughout  which  there  seems  to  have 
been  comparatively  little  manufacturing  industry,  had 
reduced  the  population  and  the  prosperity  of  the  middle 
classes,  and  had  exhausted  the  source  whence  native 
armies  could  be  drawn.  Thus  social  conditions  were 
changing.  The  growth  of  that  species  of  serfdom  which 
the  Romans  called  colonatus  belongs  to  this  period.  The 
financial  strain  on  the  government  became  more  severe. 


758  LEGAL  DEVELOPMENT 

New  expedients  had  to  be  resorted  to.  All  these  pheno- 
mena, coupled  with  the  more  autocratic  character  which 
the  central  government  of  the  Empire  took  from  Dio- 
cletian onwards,  induced  a  greater  and  sometimes  indeed 
a  hasty  and  feverish  exuberance  of  legislation,  which 
was  now  effected  solely  by  imperial  ordinances. 

Industrial  decay  seems  to  have  been  more  rapid  in 
Western  than  in  the  Eastern  provinces,  though  palpable 
enough  in  such  regions  as  Thrace  and  Greece.  But 
everywhere  there  was  an  intellectual  decline,  which  ap- 
peared not  least  in  the  sinking  of  the  level  of  juristic 
ability  and  learning.  The  great  race  of  jurists  who 
adorned  the  first  two  and  a  half  centuries  of  the  Empire 
had  long  died  out.  We  hear  of  no  fertile  legal  minds, 
no  law  books  of  merit  deserving  to  be  remembered,  dur- 
ing the  fourth  and  fifth  centuries  of  our  era.  The  mass 
of  law  had  however  increased,  and  the  judges  and  prac- 
tising advocates  were,  except  in  the  larger  cities,  less 
than  ever  capable  of  dealing  with  it.  The  substitution 
of  Roman  for  provincial  law  effected  by  the  Edict  of 
the  Emperor  Antoninus  Caracalla  had  introduced  some 
confusion,  especially  in  the  Eastern  provinces,  where 
Greek  or  Oriental  customs  were  deeply  rooted,  and 
did  not  readily  give  place  to  Roman  rules.  The  em- 
perors themselves  deplore  the  ignorance  of  law  among 
practitioners :  and  presently  it  was  found  necessary  to 
prescribe  an  examination  for  advocates  on  their  admis- 
sion to  the  bar.  Accordingly  the  necessity  for  collect- 
ing that  which  was  binding  law  and  for  putting  it  into 
an  accessible  form  became  greater  than  ever.  It  had 
in  earlier  days  been  an  ideal  of  perfection  cherished  by 
theorists;  it  was  now  an  urgent  practical  need.  It  was 
not  the  bloom  and  splendour  but  the  decadence  of  legal 
study  and  science  that  ushered  in  the  era  of  codification. 
A  century  after  the  death  of  Constantine,  the  Emperor 
Theodosius  II,  grandson  of  Theodosius  the  Great,  reign- 
ing at  Constantinople  from  A.D.  408  to  A.D.  450,  issued 
a  complete  edition  of  the  imperial  constitutions  in  force, 


LEGAL  DEVELOPMENT  759 

beginning  from  the  time  of  Constantine,  those  of  earlier 
Emperors  having  been  already  gathered  into  two  collec- 
tions (compiled  by  two  eminent  jurists)  in  current  use. 
Shortly  before  a  statute  had  been  issued  giving  full 
binding  authority  to  all  the  writings  (except  the  notes 
of  Paul  and  Ulpian  upon  Papinian)  of  five  specially  fa- 
mous jurists  of  the  classical  age  (Papinian,  Paul,  Gains, 
Ulpian,  Modestinus).  The  advisers  of  Theodosius  II 
had  intended  to  codify  the  whole  law,  including  the 
ancient  statutes  and  decrees  of  the  Senate  and  Edicts 
of  magistrates  so  far  as  they  remained  in  force,  as  well 
as  the  writings  of  the  jurists,  but  the  difficulties  were  too 
great  for  them,  and  they  contented  themselves  with  a 
revised  edition  of  the  more  recent  imperial  constitutions. 

Justinian  was  more  energetic,  and  his  codification  of 
the  whole  law  of  the  Empire  marks  an  epoch  of  supreme 
importance  in  the  history  not  merely  of  Rome  but  of 
the  civilized  world,  for  it  is  possible  that  without  it  very 
little  of  the  jurisprudence  of  antiquity  would  have  been 
preserved  to  us,  so  that  the  new  nations  which  were 
destined  to  emerge  from  the  confusion  of  the  Dark 
Ages  might  have  lacked  the  foundation  on  which  they 
have  built  up  the  law  of  the  modern  world.  It  is  indeed 
an  epoch  which  stands  alone  both  in  legal  and  in  political 
history. 

Justinian's  scheme  for  arranging  and  consolidating  the 
law  included  a  compilation  of  extracts  from  the  writings 
of  the  jurists  of  the  first  three  centuries  of  the  Empire, 
together  with  a  collection  of  such  and  so  many  of  the 
Constitutions  of  the  Emperors  as  were  to  be  left  in 
force,  both  collections  being  revised  so  as  to  bring  the 
contents  of  each  into  accord  and  to  harmonize  the  part 
of  earlier  date  (viz.  that  which  contained  the  extracts 
from  the  old  jurists)  with  the  later  law  as  settled  by 
imperial  ordinances.  It  was  completed  in  the  space  of 
six  years  only — too  short  a  time  for  so  great  a  work. 
It  was  followed  by  a  good  deal  of  fresh  legislation,  for 
the  Emperor  and  his  legal  minister  Tribonian,  having 


760  LEGAL  DEVELOPMENT 

had  their  appetite  whetted,  desired  to  amend  the  law 
in  many  further  points  and  reduce  it  to  a  greater  sym- 
metry of  form  and  perfection  of  substance.  The  Em- 
peror moreover  desired,  for  Tribonian  was  probably 
something  of  a  Gallio  in  such  matters,  to  give  effect  to 
his  religious  sentiments  both  by  laying  a  heavy  hand  on 
heretics  and  by  making  the  law  more  conformable  to 
Christian  ideas.  Thus  the  time  of  Justinian  is  almost 
as  significant  for  the  changes  made  in  the  substance  of 
the  law  as  for  the  more  compendious  and  convenient 
form  into  which  the  law  was  brought. 

Some  thirty  years  before  the  enactment  of  Justinian's 
Codex  and  Digest  (which,  though  intended  for  the  whole 
Empire,  did  not  come  into  force  in  such  Western  pro- 
vinces as  had  already  been  lost)  three  collections  of 
law  had  been  made  by  three  barbarian  kings  for  the 
governance  of  their  Roman  subjects.  These  were  the 
Edictum  of  Theodorich,  King  of  the  East  Goths,  pub- 
lished in  A.D.  500,  the  Lex  Romana  Visigothorum,  com- 
monly called  the  Breviarhiin  Alaricianum,  published  by 
Alarich  II,  King  of  the  West  Goths  (settled  in  Aqui- 
taine  and  Spain),  in  A.D.  506,  a  year  before  his  overthrow 
by  Clovis,  and  the  Lex  Romana  Burgundionum,  published 
by  the  Burgundian  King  Sigismund  in  the  beginning 
of  the  sixth  century.  These  three  compilations,  each 
of  which  consists  of  a  certain  number  of  imperial  Con- 
stitutions, with  extracts  from  a  few  jurists,  ought  to 
be  considered  in  relation  to  Justinian's  work,  partly  be- 
cause each  of  them  did  for  a  part  of  the  Roman  West 
what  he  did  for  the  East,  and,  as  it  turned  out,  for  Italy 
and  Sicily  also,  when  Belisarius  reconquered  those  coun- 
tries for  him,  and  partly  because  they  were  due  to  the 
same  need  for  accessible  abridgements  of  the  huge  mass 
of  confused  and  scattered  law  which  prompted  the  action 
of  Justinian  himself.  They  are  parts  of  the  same  move- 
ment, though  they  have  far  less  importance  than  Jus- 
tinian's work,  and,  unlike  his,  include  little  or  no  new 
law. 


LEGAL  DBVBLOPMW&f  761 

The  main  cause  of  the  tendency  to  consolidate  the 
law  and  make  it  more  accessible  was  the  profusion  with 
which  Diocletian  and  his  successors  had  used  their 
legislative  power,  flooding  the  Empire  with  a  mass  of 
ordinances  which  few  persons  could  procure  or  master, 
together  with  the  decline  of  legal  talent  and  learning, 
which  made  judges  and  advocates  unable  to  compre- 
hend, to  appropriate  and  to  apply  the  philosophical  prin- 
ciples and  fine  distinctions  stored  up  in  the  treatises  of 
the  old  jurists.  Here,  therefore,  political  and  intellectual 
conditions,  conditions  rather  of  decline  than  of  progress, 
lay  at  the  root  of  the  phenomenon.  But  in  the  case  of 
Justinian  something  must  also  be  credited  to  the  en- 
lightened desire  which  he,  or  Tribonian  for  him,  had 
conceived  of  removing  the  complexities,  irregularities 
and  discrepancies  of  the  old  law,  bringing  it  nearer  to 
what  they  thought  substantial  justice,  and  presenting  it 
in  concise  and  convenient  form.  Plato  desired  to  see 
philosophy  in  the  seat  of  power,  and  in  Justinian  philo- 
sophic theory  had  a  chance  such  as  it  seldom  gets 
of  effecting  permanently  important  changes  by  a  few 
sweeping  measures.  Yet  theory  might  have  failed  if 
it  had  not  been  reinforced  by  the  vanity  of  an  autocrat 
who  desired  to  leave  behind  him  an  enduring  monument. 

This  rapid  survey  has  shown  us  that  two  forces  were 
always  operative  on  the  development  of  Roman  law — 
internal  political  changes  and  the  influence  of  the  sur- 
rounding countries.  As  Rome  conquered  and  Roman- 
ized them,  they  compelled  her  institutions  to  transform 
themselves,  and  her  law  to  expand.  Economic  condi- 
tions, speculative  thought  and  religion  had  each  and  all 
of  them  a  share  in  the  course  which  reforms  took,  yet 
a  subordinate  share. 


762  LEGAL  DEVELOPMENT 

IV.  OUTLINE  OF  THE  PROGRESS  OF  LEGAL  CHANGES 
IN  ENGLAND. 

Let  us  now  turn  to  England  and  see  what  have  been 
the  forces  that  have  from  time  to  time  brought  about 
and  guided  the  march  of  legal  change,  and  what  have 
been  the  relations  of  that  change  to  the  general  history 
of  the  country. 

As  with  Rome  we  began  at  the  moment  when  the 
ancient  customs  were  first  committed  to  writing  and 
embodied  in  a  comprehensive  statute,  so  in  England  it 
is  convenient  to  begin  at  the  epoch  when  the  establish- 
ment of  the  King's  Courts  enabled  the  judges  to  set 
about  creating  out  of  the  mass  of  local  customs  a  body 
of  precedents  which  gave  to  those  customs  definiteness, 
consistency  and  uniformity.  Justice,  fixed  and  unswerv- 
ing justice,  was  in  the  earlier  Middle  Ages  the  chief 
need  of  the  world,  in  England  as  in  all  mediaeval  coun- 
tries; and  the  anarchy  of  Stephen's  reign  had  disposed 
men  to  welcome  a  strong  government,  and  to  acquiesce 
in  stretches  of  royal  power  that  would  otherwise  have 
been  distasteful.  Henry  II  was  a  man  of  great  force 
of  character  and  untiring  energy,  nor  was  he  wanting 
in  the  talent  for  selecting  capable  officials.  He  had  to 
struggle,  not  only  against  the  disintegrating  tendencies 
of  feudalism,  but  also  against  the  pretensions  of  the 
churchmen,  who  claimed  exemption  from  his  jurisdic- 
tion, and  maintained  courts  which  were  in  some  direc- 
tions formidable  rivals  to  his  own.  He  prevailed  in 
both  contests,  though  it  was  not  till  long  after  that  the 
victory  was  seen  to  have  remained  with  the  Crown. 
It  was  his  fortune  to  live  at  a  time  when  the  study  of 
law,  revived  in  the  schools  of  Italy,  had  made  its  way 
to  England,  where  it  was  pursued  with  a  zeal  which 
soon  told  upon  the  practice  of  the  Courts,  sharpening 
men's  wits  and  providing  for  them  an  arsenal  of  legal 
weapons.  It  is  true  that  the  law  taught  at  the  Universi- 
ties was  the  Roman  law,  and  that  the  practitioners  were 


LKGAL  DEVELOJ>MJ:\'I  703 

almost  entirely  ecclesiastics.  Now  the  barons,  however 
jealous  they  might  be  of  the  Crown,  were  not  less 
jealous  of  ecclesiastical  encroachments  and  of  the 
imperial  law.  They  could  not  prevent  judges  from 
drawing  on  the  treasures  which  the  jurists  of  ancient 
Rome  had  accumulated,  but  they  did  prevent  the 
Roman  law  from  becoming  recognized  as  authori- 
tative; so  that  whatever  it  contributed  to  the  law  of 
England  came  in  an  English  guise,  and  served  rather 
to  supplement  than  to  supersede  the  old  customs  of 
the  kingdom. 

In  this  memorable  epoch,  which  stamped  upon  the 
common  law  of  England  a  character  it  has  never  lost, 
the  impulse  which  the  work  of  law-making  received 
came  primarily  from  the  political  circumstances  of  the 
time,  that  is,  from  the  desire  of  the  king  to  make  his 
power  as  the  receiver  of  taxes  and  the  fountain  of  jus- 
tice effective  through  his  judges,  and  from  the  sense  in 
all  classes  that  the  constant  activity  of  the  Courts  in 
reducing  the  tangle  of  customs  to  order,  no  less  than 
the  occasional  activity  of  the  king  when  he  enacted  with 
the  advice  and  consent  of  his  Great  Council  statutes 
such  as  the  Constitutions  of  Clarendon,  was  a  bene- 
ficial activity,  wholesome  to  the  nation.  But  though  po- 
litical causes  were  the  main  forces  at  work,  much  must 
also  be  allowed  to  the  influence  of  ideas,  and  particu- 
larly to  the  intellectual  stimulus  and  the  legal  training 
which  the  study  of  Roman  jurisprudence  had  given  to 
the  educated  men  who  surrounded  and  worked  for  the 
king  and  the  bishops. 

The  development  of  English  institutions  has  been  at 
all  times  so  slow  and  so  comparatively  steady  that  it  is 
not  easy  to  fix  upon  particular  epochs  as  those  most 
conspicuously  marked  by  change.  However  I  take  the 
epoch  of  Edward  I  and  Edward  III.  Under  Edward  lr 
whose  reign  was  one  of  comparative  domestic  tranquil- 
lity, the  organ  of  government  whose  supreme  legisla- 
tive authority  was  to  become  unquestioned  took  its  final 


764  LEGAL  DEVELOPMENT 

shape  in  passing  from  a  Great  Council  of  magnates  to 
an  Assembly  consisting  of  two  Houses,  in  one  of  which 
the  chief  tenants  of  the  Crown  sat,  while  the  other  was 
composed  of  representatives  of  the  minor  tenants  and  of 
boroughs.  Under  his  grandson  the  chief  judicial  Mini- 
ster of  the  Crown  began  to  sit  as  a  Court,  granting  re- 
dress in  the  name  of  the  Crown  in  cases  or  by  methods 
which  the  pre-existing  Courts  were  unable  or  unwilling 
to  deal  with.  Parliament  passed  under  Edward  I  some 
statutes  of  the  first  magnitude,  such  as  Quia  Emptores 
and  De  Donis  Conditionalibus,  which  impressed  a  peculiar 
character  on  the  English  land  system,  and  introduced 
some  valuable  improvements  in  the  sphere  of  private 
rights  and  remedies.  But  the  legislature  was,  for  two  or 
three  centuries,  in  the  main  content  to  leave  the  build- 
ing up  of  the  law  to  the  old  Common  Law  Courts  and 
(in  later  days)  to  the  Chancellor.  The  action  of  this 
last-named  officer  was,  during  the  fifteenth,  sixteenth 
and  seventeenth  centuries,  of  capital  importance,  so  that 
the  establishment  of  his  jurisdiction  is  one  of  the  land- 
marks of  our  legal  history.  It  was  really  a  renewal,  two 
hundred  years  after  Henry  II's  time,  of  that  king's  ef- 
forts to  secure  the  due  administration  of  justice  through 
the  realm,  but  it  grew  up  naturally  and  spontaneously, 
with  less  of  conscious  purpose  than  Henry  II  had  shown. 
Both  the  legislature  and  the  Chancellor  were  the  out- 
come of  political  causes,  but  it  must  not  be  forgotten 
that  in  the  methods  taken  by  the  Chancellor  (hardly 
reduced  to  a  system  till  the  seventeenth  century)  we  find 
the  working  of  a  foreign  influence  which  thereafter  dis- 
appears from  English  law,  that,  namely,  of  the  civil  and 
canon  laws  of  Rome  and  of  the  Roman  Church,  for  the 
Chancellors  of  the  fourteenth  and  fifteenth  centuries 
were  all  ecclesiastics  and  drew  largely  from  Roman 
sources. 

The  days  of  the  Reformation  bring  two  new  and 
powerful  influences  to  bear  upon  laws  and  institutions. 
One  of  these  influences  is  economic,  the  other  religious. 


LEGAL  DEVELOPMENT  765 

The  growth  of  industry  and  trade  had  so  far  disinte- 
grated the  old  structure  of  society  and  brought  about 
new  conditions  that  not  a  few  new  laws,  among  which 
the  most  familiar  and  significant  are  the  Statute  of  Uses 
and  the  Statute  of  Wills,  were  now  needed.  The  nation 
was  passing  out  of  the  stiffness  of  a  society  based  on 
landholding  and  recognizing  serfdom  into  a  larger  and 
freer  life.  At  the  same  time  the  religious  revolution 
which  severed  it  from  Rome,  which  was  accompanied 
by  the  dissolution  of  the  monasteries,  and  which  ended 
by  securing  the  ascendency  of  a  new  body  of  theological 
ideas  and  of  simpler  forms  of  worship,  involved  many 
legal  changes.  The  ecclesiastical  courts  were  shorn  of 
most  of  their  powers,  and  the  law  they  administered  was 
cut  off  from  the  influences  that  had  theretofore  moulded 
and  dominated  it.  The  position  of  the  clergy  was  al- 
tered. New  provisions  for  the  poor  soon  began  to  be 
called  for.-  New  tendencies,  the  result  of  a  bolder  spirit 
of  inquiry,  made  themselves  felt  in  legislation.  One  sees 
them  stirring  in  the  mind  of  Sir  Thomas  More.  It  was 
some  time  before  the  religious  and  economic  changes, 
took  their  full  effect  upon  the  law.  But  nearly  all  the 
remarkable  developments  that  make  the  time  of  Henry 
VIII  and  Elizabeth  an  epoch  of  legal  change,  may  be 
traced  not  so  much  to  politics  as  to  the  joint  influence 
of  commerce  (including  the  growth  of  personal,  as  dis- 
tinguished from  real,  property)  and  of  theology.  Even 
the  oceanic  power  and  territorial  expansion  of  England, 
which  began  with  the  voyages  of  Drake  and  the  founda- 
tion of  the  Virginia  Company  and  of  the  East  India 
Company,  did  not  affect  either  the  law  or  the  institu- 
tions of  the  country.  The  establishment  of  distant  set- 
tlements was  largely  the  result  of  the  growing  force  of 
commercial  enterprise,  in  which  there  was  at  first  very 
little  of  political  ambition,  though  it  cordially  lent  itself 
to  a  political  antagonism  first  to  Spain  and  then  to 
France. 

With  the  time  of  the  Great  Civil  War  we  return  to 


766  LEGAL  DEVELOPMENT 

an  era  in  which,  though  religion  and  commerce  con- 
tinue to  be  potent  forces,  the  first  place  must  again  be 
assigned  to  political  causes.  The  struggle  which  over- 
threw the  old  monarchy  effected  two  things.  It  ex- 
tinguished the  claims  of  the  Crown  to  a  concurrent 
legislative  or  quasi-legislative  power.  The  two  Houses 
of  Parliament  were  established  as  an  engine  for  effect- 
ing legal  changes,  prompt  in  action  and  irresistible  in 
strength  1.  Towards  this  England  had  long  been  slowly 
tending,  as  during  a  century  before  Augustus  Rome 
slowly  tended  to  a  monarchy.  The  work  was  completed 
at  the  Boyne  and  Aughrim,  but  the  decisive  blow  was 
struck  at  Naseby.  And,  secondly,  it  occasioned  the 
accomplishment  of  several  broad  and  sweeping  reforms 
in  institutions  as  well  as  in  law  proper.  A  Parliamentary 
Union  of  England,  Scotland  and  Ireland  was  effected 
which,  though  annulled  by  the  Restoration,  was  a  signifi- 
cant anticipation  of  what  the  following  century  was  to 
bring.  The  old  system  of  feudal  tenure  and  the  relics 
of  feudal  finance  were  abolished.  New  provisions  were 
made,  and  old  ones  confirmed  and  extended,  for  the 
protection  of  the  freedom  of  the  subject  in  person  and 
estate.  Commercial  transactions  were  regulated,  per- 
haps embarrassed,  by  a  famous  enactment  (the  Statute 
of  Frauds)  regarding  the  evidence  required  to  prove  a 
contract.  Such  of  these  things  as  lay  outside  the  purely 
political  sphere  were  due  partly  to  the  development  of 
industry  and  commerce,  which  had  gone  on  apace  dur- 
ing the  reign  of  James  I,  and  was  resumed  during  the 
government  of  Cromwell  and  Charles  II,  partly  to  that 
sense  which  political  revolutions  bring  with  them,  that 
the  time  has  come  for  using  the  impulse  of  liberated 
forces  to  effect  forthwith  changes  which  had  for  a  long 
time  before  been  in  the  air.  On  a  still  larger  scale,  it 
was  the  Revolution  and  Empire  in  France  that  led  to 

>  As  Milton  says  :— 

4  And  that  two-handed  engine  at  the  door 
Stands  ready  to  strike  once  and  strike  no  more.* 


DI-:YI:LOI>MI-:\T  re: 

the  remodelling  of  French  institutions  and  the  enact- 
ment of  Napoleon's  Codes  J. 

As  usually  happens,  an  era  of  abnormal  activity  in 
recasting  institutions  and  in  amending  the  law  was  fol- 
lowed by  one  of  comparative  quiescence.  It  was  not 
till  the  middle  of  the  reign  of  George  III  that  the  be- 
ginnings of  a  new  period  of  transition  were  apparent, 
not  till  after  the  Reform  Bill  of  1832  that  the  largest 
among  the  many  reforms  towards  which  men's  minds 
had  been  ripening  were  effected.  These  reforms,  which 
have  occupied  the  last  sixty-seven  years,  have  touched 
every  branch  of  law.  They  include  a  great  mitigation 
of  the  old  severity  of  the  criminal  law  and  the  intro- 
duction of  provisions  for  repressing  those  new  offences 
which  are  incident  to  what  is  called  the  progress  of 
society.  They  have  expunged  the  old  technicalities  of 
pleading  by  which  justice  was  so  often  defeated.  They 
have  striven  to  simplify  legal  procedure,  though  they 
have  not  succeeded  in  cheapening  it,  and  have  fused 
the  ancient  Courts  of  Common  Law  with  those  of 
Equity.  They  have  removed  religious  disqualifications 
on  the  holding  of  offices  and  the  exercise  of  the  suffrage. 
They  have  dealt  with  a  long  series  of  commercial  pro- 
blems, and  have  in  particular  made  easy  the  creation  of 
corporations  for  business  and  other  purposes,  given 
limited  liability  to  their  members,  and  laid  down  many 
regulations  for  their  management.  They  have  altered 
the  law  of  land,  enlarging  the  powers  of  life  owners, 
and  rendering  it  easier  to  break  entails.  They  have  re- 
organized the  fiscal  system,  simplified  the  customs 
duties,  and  established  a  tariff  levied  for  revenue  only. 
They  have  codified  the  law,  mainly  customary  in  its 
origin,  relating  to  such  topics  as  negotiable  instruments, 
sale  and  partnership.  They  have  created  an  immense 
body  of  administrative  law,  extending  and  regulating 
the  powers  of  various  branches  of  the  central  govern- 

1  Although  the  Napoleonic  government  was  in  many  things  only  completing 
work  begun  under  Lewis  the  Fourteenth. 


768  LEGAL  DEVELOPMENT 

ment,  and,  while  remodelling  municipal  government, 
have  created  new  systems  of  rural  local  government. 
As  regards  the  central  institutions  of  the  country,  seve- 
ral new  departments  of  State  have  been  called  into 
being.  Ecclesiastical  property  has  been  boldly  handled, 
though  not  (except  in  Ireland)  diverted  to  secular  uses; 
a  new  Court  of  Appeal  for  causes  coming  from  the 
extra-Britannic  dominions  of  the  Crown  has  been 
set  up,  and  the  electoral  franchise  has  been  repeatedly 
extended. 

These  immense  changes  have  been  due  to  three  in- 
fluences. The  first  was  the  general  enlightenment  of 
mind  due  to  the  play  of  speculative  thought  upon  practi- 
cal questions  which  marked  the  end  of  last  and  the 
beginning  of  this  century,  and  of  which  the  most  con- 
spicuous apostles  were  Adam  Smith  in  the  sphere  of 
economics  and  Jeremy  Bentham  in  the  sphere  of  legal 
reform.  The  second  was  the  rapid  extension  of  manu- 
facturing industry  and  commerce,  itself  largely  due  to 
the  progress  of  physical  science,  which  has  placed  new 
resources  at  the  command  of  man  both  for  the  produc- 
tion and  for  the  transportation  of  commodities.  The 
third  influence  was  political,  and  was  itself  in  large  mea- 
sure the  result  of  the  other  two,  for  it  was  the  com- 
bination of  industrial  growth  with  intellectual  emancipa- 
tion that  produced  the  transfer  of  political  power  and 
democratization  of  institutions  which  went  on  from  the 
Roman  Catholic  Emancipation  Act  of  1829  to  the  Local 
Government  Act  of  1894.  Could  we  imagine  this  in- 
dustrial and  intellectual  development  to  have  failed  to 
work  on  political  institutions  as  it  in  fact  did  work,  it 
would  hardly  the  less  have  told  upon  administration  and 
upon  private  law,  for  the  new  needs  would  under  any 
form  of  government,  even  under  an  oligarchy  like  that 
of  George  IFs  time,  have  given  birth  to  new  measures 
fitted  to  deal  with  them.  The  legislation  relating  to 
Joint  Stock  Companies  (beginning  with  the  Winding-Up 
Acts),  which  filled  so  important  a  place  in  the  English 


LEGAL  DEVELOPMENT  769 

Statute-book  from  1830  to  1862,  and  which  still  con- 
tinues, though  in  a  reduced  stream,  would  under  any 
political  conditions  have  been  required  owing  to  the 
growth  of  commerce,  the  making  of  railways,  the  in- 
creased need  for  the  provision  of  water,  gas  and  drain- 
age. And  there  went  on,  hand  and  hand  with  it,  an 
equally  needed  development  by  the  Courts  of  Equity 
of  the  law  of  partnership,  of  agency  and  of  trusts,  as 
applied  to  commercial  undertakings.  What  the  political 
changes  actually  did  was  to  provide  a  powerful  stimulus 
to  reform,  and  an  effective  instrument  for  reform,  while 
reducing  that  general  distaste  for  novelties  which  had 
been  so  strong  in  the  first  half  of  the  eighteenth  century. 
If  we  now  review  the  general  course  of  changes  in 
institutions  and  law  in  the  two  States  selected  for  com- 
parison we  shall  be  struck  by  two  points  of  difference. 

V.    SOME  DIFFERENCES  BETWEEN   THE   DEVELOPMENT  OF 
ROMAN  AND  THAT  OF  ENGLISH  LAW. 

The  branch  of  private  law  which  is  most  intimately 
connected  with  the  social  and  economic  habits  of  a 
nation,  and  which,  through  social  and  economic  habits, 
most  affects  its  character,  is  that  branch  which  touches 
Property,  and  the  connexion  of  property  with  the  Fa- 
mily. The  particular  form  which  the  institutions  relat- 
ing to  property,  especially  immovable  property,  take, 
tells  upon  the  whole  structure  of  society,  especially  in 
the  earlier  stages  of  national  growth.  The  rules,  for 
instance,  which  govern  the  power  of  an  owner  to  dis- 
pose of  his  property  during  his  life  or  by  will,  and  those 
which  determine  the  capacity  of  his  wife  and  children  to 
acquire  for  themselves  by  labour  or  through  gift,  and 
to  claim  a  share  in  his  estate  at  his  decease  if  he  dies 
intestate,  or  even  against  his  last  will — these  rules  touch 
the  richer  and  middle  classes  in  a  community  and  affect 
their  life.  So  one  may  perhaps  say  that  the  develop- 
ment of  this  branch  of  law  comes  nearer  than  any  other 
49 


770  LEGAL  DEVELOPMENT 

to  being  the  central  line  of  legal  development,  bearing  in 
mind  that  it  is  the  needs  and  wishes  of  the  richer  and 
middle  classes  which  guide  the  course  of  legal  change. 
Here,  however,  we  discover  an  interesting  point  of  com- 
parison between  Roman  and  English  legal  history. 

At  Rome  it  is  the  history  of  the  Family,  especially  as 
taken  on  its  economic  or  pecuniary  side,  the  most  im- 
portant part  of  which  is  the  Law  of  Inheritance,  that 
plays  the  largest  part.  The  old  rules,  which  held  the 
Family  together,  and  vested  in  the  father  the  control  of 
family  property,  were  at  first  stringent.  From  the  third 
century  B.C.  onwards  they  began  to  be  modified,  but 
they  were  so  closely  bound  up  with  the  ideas  and  habits 
of  the  people  that  they  yielded  very  slowly,  and  it  was 
not  till  the  bold  hand  of  Justinian  swept  away  nearly 
all  that  remained  of  the  ancient  rules  of  succession,  and 
put  a  plain  and  logical  system  in  their  place,  that  the 
process  was  complete. 

In  England,  on  the  other  hand,  it  is  the  Law  of  Land 
that  is  the  most  salient  feature  in  the  economico-legal 
system  of  the  Middle  Ages.  Among  the  Teutons  the 
Family  had  not  been,  within  historic  times  at  least,  a 
group  closely  bound  together  as  it  was  among  the 
Italians,  whereas  the  historical  and  political  conditions 
of  the  eleventh  and  twelfth  centuries  had  in  Western 
Europe  made  landholding  the  basis  of  nearly  all  social 
and  economic  relations.  Hence  the  land  customs  then 
formed  took  a  grip  of  the  nation  so  tight  that  ages 
were  needed  to  unloose  it.  The  process  may  be  said 
to  have  begun  with  a  famous  statute  (Quia  Emptores)  in 
the  reign  of  Edward  I.  Its  slow  advance  was  quickened 
in  the  seventeenth  century  by  political  revolution;  and 
the  Act  of  1660  which  abolished  knight  service  recorded 
a  great  change.  The  peaceful  revolution  of  1832  gave 
birth  to  the  series  of  statutes  which  from  1834  down  to 
our  own  day  have  been  reshaping  the  ancient  land  sys- 
tem, but  reshaping  it  in  a  more  piecemeal  and  perplex- 
ing fashion  than  that  in  which  Justinian  reformed  the 


LEGAL  DEVELOPMENT  771 

law  of  succession  by  the  iiSth  and  12/th  Novels.  Pro- 
blems connected  with  landholding  still  remain  in  Eng- 
land, as  they  do  in  nearly  all  States,  especially  where 
population  is  dense;  but  they  differ  from  the  old  pro- 
blems, and  though  disputes  relating  to  the  taxation  of 
land  give  trouble,  and  may  give  still  more  trouble,  ques- 
tions of  tenure  have  lost  the  special  importance  which 
made  them  once  so  prominent  in  our  legal  history. 

Both  Rome  and  England  have  been,  far  beyond  any 
other  countries  except  Russia,  expanding  States.  Rome 
the  City  became  Rome  the  World-State.  The  Folk  of 
the  West  Saxons  went  on  growing  till  it  brought  first 
the  other  kingdoms  of  South  Britain,  Teutonic  and 
Celtic,  then  the  adjoining  isles  of  Ireland  and  Man,  then 
a  large  part  of  North  America,  then  countless  regions 
far  away  over  the  oceans  under  the  headship  of  the  de- 
scendants of  Cerdic  and  Alfred.  But  in  the  case  of  Rome 
this  expansion  by  conquest  was  the  ruling  factor  in  poli- 
tical and  legal  evolution,  the  determining  influence  by 
which  institutions  were  transformed.  In  England,  on 
the  other  hand,  it  is  the  relations  of  classes  that  have 
been  the  most  active  agency  in  inducing  political  change, 
and  the  successive  additions  of  territory  have  exerted 
a  secondary  influence  on  institutions  and  an  insignifi- 
cant influence  on  law.  Not  only  has  English  law  been 
far  less  affected  (save  at  the  first  two  of  the  five  epochs 
above  described)  by  foreign  law  or  foreign  thought  than 
Rome  was,  but  the  increase  of  England  by  the  union, 
first  of  Scotland  and  then  Ireland,  and  by  the  acquisi- 
tion of  transoceanic  dominions,  has  not  interrupted  the 
purely  insular  or  national  development  of  English  law. 
The  conquest  of  Ireland,  which  began  in  the  twelfth  cen- 
tury but  was  not  completed  till  the  seventeenth,  made 
no  difference,  because  Ireland,  always  since  the  twelfth 
century  far  behind  England  in  material  progress  and 
settled  social  order,  received  a  separate  civil  administra- 
tion with  separate  Courts.  As  these  Courts  admini- 
stered English  law,  they  followed  in  the  path  which  Eng- 


772  LEGAL  DEVELOPMENT 

land  had  already  travelled  and  did  not  affect  the  pro- 
gress of  law  in  England.  Nothing  speaks  more  of  the 
long-continued  antagonism  of  the  Teutonic  and  the 
Celtic  elements  in  Ireland,  and  of  the  dominance  of  the 
Teutonic  minority  over  the  Celtic  majority,  than  the 
practical  identity  of  the  common  law  in  the  two  coun- 
tries, and  the  total  absence  of  any  Celtic  customs  in  that 
law.  The  few  and  comparatively  slight  differences  which 
exist  to-day  between  the  law  of  England  and  that  of 
Ireland  are  all  due  to  statute.  One  is  the  absence  of 
judicial  divorce  in  Ireland,  which  an  Act  passed  so  re- 
cently as  1857  introduced  in  England.  The  second  is  to 
be  found  in  the  law  relating  to  land,  largely  altered  by 
statutes  passed  for  Ireland  by  the  British  Parliament 
of  our  own  time.  The  third  is  the  existence  in  Ireland  of 
what  are  admitted  to  be  exceptional  and  supposed  to 
be  temporary  penal  provisions,  the  last  of  which  is  the 
Prevention  of  Crime  Act  of  1887.  As  regards  Scotland, 
when  her  king  became  king  of  England,  and  when,  a 
century  later,  her  Parliament  was  united  with  that  of 
England,  she  retained  her  own  law  intact.  In  some  few 
respects  her  law,  founded  on  that  of  Rome,  and  her  sys- 
tem of  judicial  administration  are  better  than  those  of 
England,  nor  has  she  failed  to  contribute  distinguished 
figures  to  the  English  bench  and  bar;  but,  as  she  stands 
far  below  England  in  population  and  wealth,  she  has 
affected  the  law  of  the  larger  country  as  little  as  the 
attraction  of  the  moon  affects  the  solid  crust  of  the 
Earth. 

The  vaster  territorial  expansion  of  the  eighteenth  and 
nineteenth  centuries  has  told  quite  as  little  on  the  law 
of  England  as  did  the  unions  with  Scotland  and  Ireland. 
When  the  English  began  to  people  what  are  now  the 
self-governing  colonies,  and  when  India  came  under 
British  sway,  English  law  was  too  fully  developed  to  be 
susceptible  to  influences  from  them,  not  to  add  that  they 
were  too  distant  to  make  any  assimilation  either  desira- 
ble or  possible.  Had  India  lain  no  further  from  Eng- 


LEGAL  DEVELOPMENT  ?73 

land  than  Sicily  and  the  Greek  cities  lay  from  Rome, 
had  she  been  as  near  the  level  of  English  civilization 
as  those  countries  were  to  that  of  Roman  civilization, 
and  had  she  been  conquered  in  the  reign  of  Elizabeth 
instead  of  in  the  reign  of  George  III,  the  history  of 
English  institutions  and  English  law  must  have  been 
wholly  unlike  what  it  has  in  fact  been.  These  three 
differences  measure  the  gulf  which  separates  the  course 
of  English  from  that  of  Roman  development. 

Another  salient  point  in  which  the  two  States  may  be 
compared  relates  to  the  smaller  part  which  purely  poli- 
tical as  compared  with  economic  and  intellectual  changes 
have  played  in  the  development  of  English  laws  and  in- 
stitutions. Although  there  is  a  sense  in  which  every 
political  change  may  be  described  as  the  result  of  an 
economic  or  intellectual  change,  or  of  both  taken  to- 
gether, still  it  is  true  that  at  Rome  the  desire  to  grasp 
political  power  counted  for  more  in  the  march  of  events 
than  it  has  done  in  England. 

Economic  changes  sometimes  operate  on  politics  by 
raising  the  material  condition  of  the  humbler  class  and 
thereby  disposing  and  enabling  them  to  claim  a  larger 
share  of  political  power.  This  happened  at  Rome  more 
frequently  in  the  earlier  than  in  the  later  days  of  the 
Republic.  In  England  it  has  happened  more  in  later 
times  than  it  did  in  earlier.  Sometimes,  however,  eco- 
nomic causes  so  depress  the  poor  that  their  misery 
becomes  acute  or  their  envy  intense,  whence  it  befalls 
that  they  break  out  into  revolt  against  the  rich.  This 
was  on  the  point  of  happening  more  than  once  at  Rome, 
but  has  been  no  serious  danger  in  England  since  the 
days  of  Richard  II.  Sometimes,  again,  the  growth  of 
immense  fortunes  and  the  opportunities  of  gaining 
wealth  through  politics  threaten  the  working  of  popular 
institutions.  This  occurred  at  Rome;  and  was  one  of 
the  causes  which  brought  the  Republic  to  its  death.  It 
is  a  peril  against  which  England  has  had,  and  may  again 
have,  to  take  precautions. 


774  LEGAL  DEVELOP  MEM' 

Changes  in  thought  and  belief  operate  on  politics 
either  by  weakening  the  deferential  and  submissive 
habits  of  the  classes  which  have  been  excluded  from 
power  so  that  they  insist  on  having  their  fair  share  of 
it,  or  -by  implanting  in  the  minds  of  the  middle  and 
upper  classes  new  ideas  which  grow  strong  enough  to 
make  them  insist  on  bringing  old-fashioned  practice  into 
accord  with  new  and  more  enlightened  theory.  It  was 
the  concurrence  of  these  two  forms  of  intellectual  change 
that  gave  its  specially  destructive  character  to  the 
French  Revolution.  Ideas  of  course  act  most  quickly 
and  powerfully  when  they  are  such  as  rouse  emotion, 
for  that  which  remains  a  mere  intellectual  concept  or 
speculative  opinion  is  not  a  thing  to  stir  or  to  shake 
established  institutions.  The  best  illustration  is  to  be 
found  in  religious  beliefs.  But  the  notion  of  Equality 
— that  is  to  say,  the  notion  that  rights  vested  in  every 
man  as  a  man  demand  that  every  man  shall  be  treated 
alike — has  also  proved  an  energetic  explosive.  Influ- 
ences of  this  kind  counted  for  little  at  Rome.  Neither 
have  they,  except  in  the  form  of  religious  beliefs,  or 
when  their  force  coincided  with  that  exerted  by  religious 
convictions,  become  the  source  of  strife  or  constitu- 
tional change  in  England. 

One  may  indeed  say  that  the  course  of  England's 
political  development  has  been  less  interrupted  by  con- 
vulsions than  that  of  any  other  great  State,  for  even 
the  scars  made  by  the  Civil  War  were  before  long  healed, 
so  that  hardly  any  of  the  old  institutions  perished, 
though  some  of  them  passed  into  new  phases.  The  new 
buildings  which  popular  government  has  within  the  pre- 
sent century  added  to  the  old  edifice  are  built  out  of 
the  same  kind  of  stone,  and  (if  one  may  venture  to  pur- 
sue the  metaphor)  weather  to  the  same  colour.  So  the 
growth  of  our  law,  both  public  and  private,  both  crimi- 
nal and  civil,  has  been  a  gradual  and  quiet  growth,  due 
in  the  main  to  the  steady  increase  in  the  magnitude  and 
complexity  of  the  industrial  and  commercial  relations 


LEGAL  DEVELOPMENT  775 

of  life,  which  have  made  the  law  expand  and  improve  at 
the  bidding  of  practical  needs.  Where  politics  have 
affected  the  law,  this  has  been  through  the  rise  of  the 
humbler  classes,  a  rise  largely  due  to  economic  causes. 
So  likewise  the  influence  of  ideas,  of  new  views  as  to 
what  law  should  be  and  how  it  should  serve  the  com- 
munity, has  been  marked  by  few  sudden  crises,  and  has 
been  ruled  by  practical  good  sense  rather  than  by  aspira- 
tions after  a  theoretical  perfection.  As  regards  private 
law,  this  remark  applies  to  the  Romans  also,  although 
the  constant  strain  placed  upon  their  institutions  by  their 
territorial  expansion  as  well  as  the  differences  between 
a  City  State  and  a  large  rural  State  exposed  their  politi- 
cal system  to  more  frequent  shocks  and  ultimately  to  a 
more  radical  transformation. 

Finally,  it  may  be  observed  that  the  interest  felt  in 
law,  and  the  amount  of  intellectual  effort  given  to  its 
development,  was  probably  greater  among  the  educated 
class  in  Rome  than  it  has  ever  been  in  any  large  section 
of  the  English  people.  Romans  of  intellectual  tastes 
had  fewer  things  to  think  about,  fewer  subjects  to  at- 
tract or  to  distract  them,  than  the  English  have  had. 
Law  was  closely  interwoven  with  public  life.  Country 
life  and  country  sports,  commerce,  religion,  travel  and 
adventure,  covered  less  of  the  mental  horizon  than  these 
pursuits  have  covered  to  Englishmen  of  the  upper  or 
educated  class,  so  that  more  of  thought  and  time 
was  left  to  be  devoted  to  law.  Nor  were  many  Ro- 
mans carried  off  into  other  regions,  like  the  Greeks, 
by  the  love  of  art,  or  of  music,  or  of  abstract  specula- 
tion. 

From  this  reflection  another  arises,  viz.  that  legal  and 
constitutional  studies,  as  a  subject  for  research  and 
thought,  find  the  competition  of  other  subjects  more 
severe  in  England  to-day  than  they  did  in  the  eighteenth 
century1.  Historical  inquiries,  economic  inquiries,  and, 
to  a  still  larger  extent,  inquiries  in  the  realm  of  Nature, 

1  I  owe  this  observation  to  my  friend  Mr.  Dicey. 


776  LEGAL  DEVELOPMENT 

claim  a  far  larger  share  in  the  interest  of  eager  and 
active  minds  now  than  in  the  days  of  Hobbes  or  Locke 
or  Bentham.  They  have  done  much  to  extrude  law  from 
the  place  it  once  held  among  subjects  of  interest  to  un- 
professional persons.  This  is  true  all  over  the  world; 
but  legal  topics,  whether  constitutional  or  belonging  to 
the  sphere  of  penal  or  administrative,  or  international 
or  ordinary  private  law,  seem  now  to  claim  even  fewer 
votaries  in  England  than  they  do  in  France  or  Germany, 
and  certainly  fewer  than  they  do  in  the  United  States. 

VI.    OBSERVATIONS  ON  FRANCE  AND   GERMANY. 

The  sketch  which  I  have  sought  to  draw  of  the  rela- 
tions of  general  history  to  legal  history  might  have 
been  with  advantage  extended  to  include  the  legal  his- 
tory of  other  States,  and  particularly  of  two  such  im- 
portant factors  in  modern  civilization  as  France  and 
Germany.  But,  apart  from  the  undue  length  to  which 
an  essay  would  stretch  if  it  tried  to  cover  so  large  a  field, 
there  is  a  good  reason  why  we  may  deem  these  two 
countries  less  well  suited  for  the  sort  of  comparative 
treatment  here  essayed.  Neither  of  them  has  had  the 
kind  of  independent  and  truly  national  legal  develop- 
ment which  belonged  to  Rome  and  belongs  to  England. 
Each  of  them  started  on  its  career  with  a  body  of  pre- 
existing law,  made  elsewhere,  viz.  the  Roman  law  which 
had  come  down  to  France  and  to  Germany  from  anti- 
quity. In  Gaul,  even  in  the  parts  most  settled  by  the 
Franks,  the  law  of  the  Empire  held  its  ground,  though 
everywhere  largely  modified  by  feudal  land  usages,  and 
in  the  northern  half  of  the  country,  when  it  had  ceased  to 
be  Gaul  and  had  become  France,  in  the  form  of  customs 
and  not  of  written  Roman  texts.  In  Germany  the  old 
Teutonic  customary  law  was  by  degrees  (except  as  re- 
gards land  rights)  supplanted  by  the  Corpus  luris  of  Jus- 
tinian, in  conformity  with  the  idea,  fantastic  as  that  idea 
now  appears  to  us,  which  regarded  the  Roman  Em- 


Li:<;.\  L   DE I  EL(J1>ME\  T 

perors  from  Julius  Caesar  down  to  Constantino  the  Sixth 
as  the  predecessors  in  title  of  the  Saxon  and  Franconian 
Emperors.  Thus  neither  the  French  nor  the  Germans 
built  up  on  their  own  national  foundation  a  law  dis- 
tinctively their  own.  Moreover,  both  Germany  and 
France  stand  contrasted  with  England  as  well  as  with 
Rome  in  the  fact  that  neither  country  ever  had  a  true 
central  legislature  or  central  system  of  law  courts  com- 
parable with  the  Parliament  and  King's  Courts  of  Eng- 
land. The  German  Diet,  though  enactments  were  oc- 
casionally made  in  it  with  its  consent  by  the  sovereign, 
enactments  which  however  were  not  universally  obeyed, 
dealt  very  little  with  law  proper,  even  in  the  days  of  its 
greatest  strength.  Still  less  were  the  French  States- 
General,  even  before  their  long  eclipse,  an  effective 
legislature.  Thus  the  development  of  the  law  of  both 
Germany  and  France  fell  mainly  into  the  hands  of  the 
jurists,  qualified  to  some  extent  in  Germany  by  the 
ordinances  enacted  by  the  electors,  landgraves,  and 
other  princes,  as  well  as  by  the  free  imperial  cities,  and 
(in  later  days)  by  the  kings  whose  dominions  formed 
part  of  the  decaying  Empire,  and  qualified  in  post- 
mediaeval  France  by  the  ordinances  of  the  king.  In 
both  countries  it  was  upon  the  Roman  law,  as  modified 
by  custom,  that  the  jurists  worked,  and  hence  in  neither 
did  a  body  of  law  grow  up  which  was  truly  national,  in 
the  sense  either  of  having  a  distinctive  national  quality 
or  of  embracing  the  whole  nation  or  of  having  been 
enacted  by  a  national  legislature.  The  first  complete 
unity  given  to  law  in  France  was  given  by  Napoleon. 
His  Code  was  based  on  the  Roman  law  theretofore 
used,  which  had  to  a  considerable  extent  been  already 
codified  under  Lewis  XIV;  yet  the  creation  of  one  Code 
for  the  whole  country  was  a  step  so  bold  that  it  could 
hardly  have  been  attempted  except  by  an  autocrat  and 
on  the  morrow  of  a  revolution.  The  first  modern  effort 
to  give  unity  to  law  in  Germany,  itself  an  efflux  of  the 
aspiration  for  national  unity,  was  made  by  the  General 


778  LEGAL  DEVELOPMENT 

Bills  of  Exchange  Law  (Wechselordnung)  (1848-1850), 
while  a  general  Commercial  Code  (Gcmeines  Handels- 
gesetzbuch)  enacted  in  various  States  between  1862  and 
1866  was  re-enacted  for  the  new  Empire  in  1871.  The 
fuller  unity  long  desired  was  attained  in  1900,  when  the 
new  general  Code  for  the  whole  German  Empire  came 
into  force.  This  similarity  between  the  legal  history  of 
France  and  that  of  Germany  seems  the  more  curious 
when  one  remembers  that,  so  far  as  mere  political  unity 
is  concerned,  France  attained  that  unity  comparatively 
early,  one  may  say  at  the  end  of  the  fifteenth  century, 
while  Germany  continued  down  till  the  extinction  of 
the  old  Empire  in  1806  to  go  on  losing  what  political 
unity  she  had  possessed.  It  was  not  till  1866  that  she 
began  to  regain  it,  though  the  Customs  Union  of  the 
German  States,  formed  in  1829,  had  been  a  presage  of 
what  was  coming. 

VII.    PRIVATE  LAW  LEAST   AFFECTED  BY  POLITICAL 
CHANGES  OR  DIRECT  LEGISLATION. 

One  phenomenon  is  common  to  the  legal  history  in 
all  these  nations.  That  part  of  the  law  which  has  the 
greatest  interest  for  the  scientific  student,  and  the  great- 
est importance  for  the  ordinary  citizen,  the  private  civil 
law  of  family  and  property,  of  contracts  and  torts,  has 
been  the  part  least  affected  either  by  political  changes  or 
by  direct  legislation.  It  has  been  evolved  quietly,  slowly 
and  almost  imperceptibly,  first  by  popular  custom,  then 
by  the  labours  of  jurists  and  the  practice  of  the  Courts. 
Direct  legislation  by  the  supreme  power  has  stepped  in 
chiefly  to  settle  controversies  between  conflicting  au- 
thorities, or  to  expunge  errors  too  firmly  rooted  for 
judges  to  rectify,  or  to  embody  existing  usage  in  a  defi- 
nite and  permanent  form.  In  the  sphere  of  private  law, 
and  even  in  that  of  criminal  law  (so  far  as  not  affected 
by  politics),  legislation  scarcely  ever  creates  any  large 
new  rule,  and  seldom  even  any  minor  rule  which  is 


LllUAL  DEVELOPMENT  779 

absolutely  new,  not  an  enlargement  of  something  which 
has  gone  before.  Pure  legislative  novelties  mostly  turn 
out  ill.  Fortunately,  the  good  sense  of  Englishmen, 
like  that  of  Romans,  has  rarely  permitted  them  to 
appear. 

The  parallel  drawn  between  the  history  of  Roman 
and  that  of  English  law  is  less  instructive  when  we 
reach  the  later  stages  of  that  history.  It  cannot  be  made 
complete,  not  only  because  we  know  comparatively  little 
of  the  inner  condition  and  practical  working  of  the 
Courts  after  the  time  of  Constantine,  but  because  there 
was  after  his  time  both  a  political  and  an  intellectual 
decay,  which  few  will  profess  to  discover  in  the  England 
of  this  century.  The  expansion  and  enrichment  of  the 
Roman  system  had  stopped  even  before  Constantine, 
while  that  of  English  Law  is  still  proceeding1.  In  Eng- 
land commerce  is  still  growing,  education  is  still  advan- 
cing, new  and  complicated  problems  are  still  emerging, 
so  that  many  forces  continue  to  work  for  the  develop- 
ment of  law.  Though  we  cannot  foresee  what  lines 
this  development  will  follow  we  may  feel  sure  that  some 
of  the  old  causes  of  change  are  disappearing.  The  demo- 
cratization of  political  institutions  seems  nearly  com- 
plete, religious  passions  have  grown  cold,  and  all  classes 
have  been  so  fully  admitted  to  a  share  in  political  power 
that  any  such  bold  reforms  in  central  and  local  admini- 
stration, in  procedure,  in  penal  law,  and  in  one  or  two 
departments  of  private  civil  law  as  followed  the  Reform 
Bill  of  1832,  seem  improbable.  In  some  departments 
the  possibilities  of  further  progress  appear  to  be  ex- 
hausted, though  there  are  others,  such  as  those  con- 
cerned with  questions  of  the  right  of  combination  among 
employers  or  among  workmen,  and  the  character  which 
motive  imparts  to  acts  in  themselves  lawful  on  which 

1  Within  two  centuries  after  Justinian's  time  official  abridgements  of  his  Corpus 
luris  began  to  be  issued,  and  it  was  virtually  superseded  in  the  end  of  the  ninth 
century  by  the  Basilica  of  the  Emperor  Leo  the  Philosopher.  The  action  of  his 
successors  was  'argely  directed  to  cutting  down  the  old  law  into  a  shape  better 
fitted  for  the  changed  conditions  of  the  Empire,  and  the  declining  intelligence  of 
the  people. 


780  LEGAL  DEVELOPMENT 

the  last  word  is  far  from  having  been  said1.  But  there 
are  at  least  two  real  difficulties  which  remain  to  be 
grappled  with.  One  relates  to  the  methods  of  legal  pro- 
ceedings. Their  cost  is  so  great  as  to  deter  many  per- 
sons from  the  attempt  to  enforce  just  claims,  to  impose 
a  heavy  and  unfair  burden  upon  successful  litigants,  and 
to  furnish  opportunities  for  blackmail  (especially  in  libel 
cases)  to  men  who  are  equally  devoid  of  -money  and 
of  scruples.  All  efforts  to  cheapen  them  have  so  far 
failed.  The  other  problem  relates  to  a  matter  o!  sub- 
stance. What  are  the  general  principles  to  be  followed 
in  empowering  the  State  to  regulate  the  conduct  of 
individuals  or  groups  of  individuals,  in  permitting  the 
central  government  or  a  local  authority  to  compete  with 
individuals  in  industrial  enterprises,  and  in  restricting 
the  power  of  combinations  formed  for  commercial  or 
industrial  objects?  This  group  of  problems  are  being 
daily  pressed  to  the  front  by  political  forces  on  the 
one  hand  and  by  industrial  progress  on  the  other.  They 
are  as  urgent  in  the  United  States  as  in  Britain.  Nor 
are  they  matters  for  legislation  only,  for  cases  frequently 
arise  which  the  best  legislation  cannot  count  upon  hav- 
ing provided  for,  and  which  it  needs  not  only  technical 
skill  but  also  a  philosophic  grasp  of  principles  on  the 
part  of  the  bar  and  bench  to  conduct  to  a  solution. 
The  experience  of  the  ancient  world  and  that  of  the 
Middle  Ages  throws  little  light  upon  them.  But  as  they 
have  appeared  simultaneously  in  many  modern  nations, 
each  may  have  something  to  learn  from  the  others. 
Comparative  jurisprudence  has  no  more  interesting  field 
than  this:  nor  is  there  any  task  in  labouring  on  which 
an  enlightened  mind  may  find  a  wider  scope  for  the  de- 
votion of  learning  and  thought  to  the  service  of  the 
community. 

I  am  tempted  to  venture  on  some  other  predictions 
as  to  the  influences  that  may  be  expected  to  work  on 

1  The  interest  excited  by  cases  such  as  those  of  the  Mogul  Steamship  Company 
v.  Macgregor  and  Allen  v.  Flood  illustrates  this. 


LEGAL  DEVELOPMENT  781 

the  legal  changes  of  the  coming  century.  But  we  have 
been  pursuing  an  historical,  not  a  speculative,  inquiry, 
and  it  will  be  enough  to  suggest  that  industry  and  com- 
merce, as  quickened  by  the  progress  of  physical  science, 
are  likely  to  be  factors  of  increasing  power,  and  that  the 
purely  political  element  in  the  development  of  law  will 
count  for  less  than  that  contributed  by  the  effort  to 
readjust  social  conditions  and  to  give  effect  to  social 
aspirations. 


XVI 

MARRIAGE  AND  DIVORCE  UNDER 
ROMAN   AND   ENGLISH   LAW 

I.    INTRODUCTORY. 

IN  all  communities  that  have  risen  out  of  the  savage 
state,  no  legal  institution  is  at  once  so  universal,  and 
also  so  fundamental,  a  part  of  their  social  system  as  is 
Marriage.  None  affects  the  inner  life  of  a  nation  so 
profoundly,  or  in  so  many  ways,  ethical,  social,  and 
economic.  None  has  appeared  under  more  various 
forms,  or  been  more  often  modified  by  law,  when  senti- 
ment or  religion  prescribed  a  change.  In  a  famous 
passage  which  has  been  constantly  quoted,  and  often 
misunderstood,  Ulpian  takes  marriage  as  the  type  of 
those  legal  relations  which  are  prescribed  by  the  Law 
of  Nature,  and  extends  that  Law  so  far  as  to  make  it 
govern  the  irrational  creatures  as  well  as  mankind1.  If 
then  the  relation  be  so  eminently  natural,  one  might 
expect  it  to  be  also  uniform.  Yet  it  so  happens  that 
there  is  no  relation  with  which  custom  and  legislation 
have,  in  different  peoples  and  at  different  times,  dealt  so 
differently.  Nature  must  surely  have  spoken  with  a  very 
uncertain  voice  when,  as  the  jurist  says,  she  '  taught 
this  law  to  all  animals.'  Nor  does  this  infinite  diversity 
show  signs  of  disappearing.  While  in  most  branches 
of  law  the  progress  of  parallel  development  in  various 
civilized  states  is  a  progress  towards  uniformity,  so  that 

1  See  Essay  XI,  p.  587. 


MARRIAGE  AND  DIVORCE  783 

the  commercial  law,  for  instance,  of  the  chief  European 
countries  and  of  the  United  States  is,  as  respects  nine- 
teen-twentieths  of  its  substance,  practically  identical,  the 
laws  of  these  same  countries  are,  in  what  relates  to  the 
forms  of  contracting  marriage,  the  effect  of  marriage 
upon  property  rights,  the  grounds  for  dissolving  and 
modes  of  dissolving  marriage,  extremely  different,  and 
apparently  likely  to  remain  different.  Even  within  the 
narrow  limits  of  the  United  Kingdom,  England  and 
Scotland  have  each  its  own  system.  Ireland  has  a  dif- 
ferent law  from  England  in  respect  of  the  mode  of 
solemnization;  while,  as  respects  divorce,  the  divergence 
goes  so  far  that  grounds  are  recognized  as  sufficient  for 
divorce  in  Scotland  which  are  not  admitted  in  England, 
while  in  Ireland  a  divorce,  except  by  private  Act  of 
Parliament,  cannot  be  obtained  at  all.  And  the  efforts 
to  assimilate  these  three  diverse  systems  made  by  re- 
formers during  two  or  three  generations  have  been  fol- 
lowed by  so  little  practical  result  that  they  have  been  of 
late  years  altogether  dropped. 

Out  of  the  long  and  obscure  and  intricate  history  of 
the  subject,  and  out  of  the  many  still  unsolved  problems 
it  presents,  I  propose  to  select  one  subject  for  discus- 
sion, viz.  the  history  of  the  Roman  law  of  the  marriage 
relation,  as  compared  with  the  English  law,  and  par- 
ticularly with  some  of  the  later  developments  of  English 
law  in  the  United  States.  On  the  antiquities  of  the  mat- 
ter, and  in  particular  on  the  interesting  and  difficult 
questions  relating  to  primitive  forms  of  marriage,  and 
to  the  polyandry  which  is  supposed  to  have  marked  the 
earlier  life  of  many  peoples,  I  shall  not  attempt  to  touch. 
Neither  can  I  do  more  than  glance  at  the  ecclesiastical 
history  of  the  institution,  important  as  the  church  has 
been  in  influencing  civil  enactments  and  moulding  social 
sentiment. 

To  elucidate  the  Roman  system,  some  few  technical 
details  must  be  given,  but  I  shall  confine  myself  to 
those  which  are  needed  in  order  to  facilitate  a  compari- 


784  MARRIAGE  AND  DIVORCE 

son  between  it  and  that  of  England,  and  to  show  how 
essentially  the  later  Roman  conception  of  the  relation 
differed  from  that  which  Christianity  created  in  mediae- 
val Europe. 

II.    CHARACTER  OF  MARRIAGE  IN  EARLY  LAW. 

When  clear  light  first  breaks  upon  the  ancient  world 
round  the  Mediterranean  Sea  we  find  that  the  relation 
of  the  sexes  exists  in  three  forms.  The  most  savage 
tribes,  such  as  those  which  Herodotus  saw  or  heard  of 
in  Libya  and  Scythia,  have  no  regular  marriage  at  all. 
Some  lived  in  a  kind  of  promiscuity;  some  were  pro- 
bably polyandrous.  The  Eastern  peoples — Persians, 
Lydians,  Babylonians,  and  so  forth — are  polygamous, 
as  was  Israel  in  the  days  of  Moses  and  Solomon,  though 
in  a  much  lesser  degree  after  the  Captivity,  and  as  was 
the  Trojan  Priam  of  the  Homeric  poems.  The  Western 
peoples,  and  especially  the  Greeks  and  the  Italians, 
were,  broadly  speaking,  monogamous,  although  con- 
cubinage superadded  to  lawful  marriage,  especially 
among  the  Greeks,  was  not  unknown.  The  contrast  of 
the  East  and  the  West  was  marked;  and  this  particular 
difference  was  not  only  characteristic  but  momentous, 
since  it  presaged  a  different  course  for  the  social  de- 
velopment of  the  two  regions  1.  So  when  the  Teutonic 
and  Celtic  peoples  came  later  on  the  stage,  they  too 
were  generally  monogamous,  though  among  the  heathen 
Celts  the  tie  seems  to  have  been  somewhat  looser  than 
among  the  Teutons,  and  a  plurality  of  wives  may  have 
been  not  uncommon  in  heathen  times.  Tacitus,  while 
dwelling  on  the  sanctity  of  German  marriages,  observes 
that  occasionally  the  chieftains  had  more  than  one  wife, 
owing  to  the  wish  of  other  families  for  alliance  with 
them  2.  Polygamy  slowly  died  out  of  the  East  under 
Roman  rule,  though  possibly  never  quite  extinguished, 

1  Euripides  (Andront.  vv.  173-180)  contrasts  the  marriage  usages  of  barbarians 
and  Greeks,  and  dilates  (cf.  v.  465  sqq.)  on  the  evils  of  polygamy. 

2  Tac.  Germ.  c.  xvii. 


MARRIAGE   AXD   DIVORCE  785 

for  we  find  prohibitions  of  it  renewed  by  the  Emperors 
down  to  Diocletian,  before  whose  time  all  subjects  had 
become  citizens.  It  maintained  itself  in  the  Oriental 
court  of  the  Sassanid  kings  of  Persia,  and  was  indeed 
one  of  the  features  of  Persian  life  which  most  shocked 
the  philosophers  of  the  later  Roman  Empire.  As  there 
is  no  trace  of  it  in  the  Roman  law  *,  it  need  not  concern 
us  further,  since  it  has  never,  except  in  the  singular  in- 
stance of  the  Mormons,  reappeared  in  any  of  the  com- 
munities which  have  been  regulated  either  by  Roman  or 
by  Teutonic  law  2. 

Before  describing  the  Roman  system,  let  us  note  three 
general  features  which  belong  to  the  marriage  customs, 
not  indeed  of  all,  but  certainly  of  most  peoples  in  the 
earlier  stages  of  civilization.  They  are  worth  noting, 
because  they  constitute  the  central  threads  of  the  his- 
tory of  the  relation  during  civilized  times. 

(1)  The  marriage  tie  has  more  or  less  of  a  religious 
or  sacred  character,  being  generally  entered  into  with 
rites  or  ceremonies  which  place  it  under  supernatural 
sanctions.    This  is,  of  course,  more  distinctly  the  case 
where  monogamy  prevails. 

(2)  In  the  marriage  relation  the  husband  has  a  pre- 
dominant position  both  as  regards  control  over  the  per- 
son and  conduct  of  the  wife,  and  as  regards  property, 
whether  that  which  was  hers  or  that  which  was  brought 
into  common  stock  by  her  and  by  him. 

(3)  The  tie  is  comparatively  easy  of  dissolution  by  the 
husband,  less  easily  dissoluble  by  the  wife.     This  is  a 
natural  consequence  of  the  inferior  position  which  she 
holds  in  early  society. 

Although  these  three  features  are  generally  charac- 
teristic of  the  earlier  stages  of  family  law,  they  are  not 
universally  present;  and  their  presence  or  absence  in 

1  Although  Julius  Caesar,  if  we  may  credit  Suetonius,  caused  a  measure  to  be 
drafted  for  enabling  him  to  marry  as  many  wives  as  he  liked  for  the  sake  of  hav- 
ing legitimate  issue  (Suet.yWr'wj,  c.  52). 

7  Among  the  Jews  it  was  (though  forbidden  by  Roman  law)  not  formally  abo- 
lished till  the  tenth  century. 

50 


786  MARRIAGE  AND  DIVORCE 

any  given  community  does  not  necessarily  coincide  with 
a  lower  or  higher  scale  of  civilization  in  that  community. 
The  temptation  to  generalize  in  these  matters  is  natural, 
but  it  is  dangerous.  True  as  may  seem  the  general  pro- 
position, that  the  higher  or  lower  position  of  women  in 
any  society  is  a  pretty  good  index  to  the  progress  that 
society  has  made,  there  are  too  many  exceptions  to  the 
rule  for  us  to  take  it  as  a  point  of  departure  for  inquiry. 
Nor  can  these  exceptions  be  always  accounted  for  by 
any  one  cause,  such  as  race  or  religion. 

III.    THE  EARLIER  FORM  OF  ROMAN  MARRIAGE  LAW. 

Now  let  us  come  to  the  Romans,  of  whom  we  may 
say  that  it  is  they  who  have  built  up  the  marriage  law 
of  the  civilized  world,  partly  by  their  action  as  secular 
rulers  in  pagan  times,  partly  by  their  action  as  priests  in 
Christian  times.  The  other  modifying  elements,  and 
particularly  the  Hebrew  and  Teutonic  influences,  which 
have  worked  upon  the  marriage  laws  of  Christendom, 
are  of  quite  inferior  moment. 

Roman  law  begins  with  two  phenomena  which  seem 
at  first  sight  inconsistent.  One  is  the  complete  subjec- 
tion of  the  wife  to  the  husband  on  the  legal  side,  as 
regards  both  person  and  property.  The  other  is  her 
complete  equality  on  the  social  and  moral  side,  as  re- 
gards her  status  and  the  respect  paid  to  her. 

In  describing  the  nature  of  this  subjection,  one  must 
make  it  clearly  understood  that,  strictly  speaking,  it  was 
not  by  the  mere  fact  of  marriage,  that  is  to  say,  by  the 
legal  act  necessary  to  constitute  marriage,  that  a  woman 
entered  that  position  of  absolute  absorption  into  the 
legal  personality  of  her  husband  which  is  so  remarkable 
a  feature  of  the  old  law.  Whatever  may  have  been  the 
case  in  prehistoric  times,  we  find  that  at  the  time  when 
the  Twelve  Tables  were  enacted  (B.C.  449)  a  marriage 
could  be  contracted  without  any  forms  or  ceremonies 
whatever,  by  the  sole  consent  of  the  parties;  and  that, 


.l/.IA'A'/.ir//-;   .l.\/>    IHVOKCE  787 

where  this  was  the  case,  the  husband  did  not  acquire  any 
power  over  the  wife,  and  the  latter  retained  whatever 
property  she  previously  possessed.  It  was  therefore  not 
marriage  per  se  that  created  the  power  of  the  husband, 
for  a  woman  might  be  legally  married  and  not  be  under 
the  marital  power.  But  although  this  '  free  marriage,' 
as  we  may  call  it  (the  term  is  not  Roman,  but  invented 
by  modern  jurists),  was  legally  possible,  the  custom,  and 
in  old  days  the  almost  invariable  custom,  of  the  people 
was  to  add  to  the  marriage  a  ceremony  not  essential  to 
its  validity  as  a  marriage,  but  one  which  had  important 
legal  consequences.  We  may  safely  assume  that  there 
was  originally  no  true  marriage  without  the  ceremony, 
but  at  the  time  of  the  Twelve  Tables  this  was  no  longer 
the  case.  The  ceremony  created  a  relation  which  the 
Romans  called  Hand  (manus),  and  brought  the  wife 
into  her  husband's  power,  putting  her,  so  far  as  legal 
rights  went,  in  the  position  of  a  daughter  (fitiac  loco). 
It  gave  the  husband  all  the  property  she  had  when  she 
married.  It  entitled  him  to  all  she  might  acquire  after- 
wards, whether  by  gift  or  by  her  own  labour.  It  enabled 
him  to  command  her  labour,  and  even  to  sell  her,  though 
the  sale  neither  extinguished  the  marriage  nor  made  her 
a  slave,  but  merely  enabled  the  purchaser  to  make  her 
work,  while  still  requiring  him  to  respect  her  personal 
rights1.  In  compensation  for  these  disadvantages  the 
wife  became  entitled  to  be  supported  by  her  husband, 
and  to  receive  a  share  of  his  property  at  his  death,  as 
one  of  the  '  family  heirs  '  (sni  hcrcdcs),  whom  he  could 
disinherit  only  in  a  formal  way.  She  had  by  coming 
under  his  Hand  passed  out  of  her  original  family,  and 
lost  all  right  by  the  strict  civil  law  to  share  in  the  inheri- 
tance of  her  father. 

There  were  two  forms  of  ceremony  by  which  this 
power  of  the  Hand  could  be  created.  One,  probably 

1  Some  writers  doubt  whether  this  power  of  sale  existed,  and  refer  to  a  supposed 
'law  of  Romulus'  mentioned  by  Plutarch  which  devoted  to  the  infernal  gods  who- 
ever sold  his  wife.  But  the  balance  seems  to  incline  in  favour  of  the  existence  of 
the  power. 


788  MAURI  AGE  AND  DIVORCE 

the  older,  had  a  religious  character.  It  took  place  in 
the  presence  of  the  chief  pontiff,  and  its  main  feature 
was  a  sacrifice  to  Jupiter,  with  the  eating  by  the  bride 
and  bridegroom  of  a  cake  of  a  particular  kind  of  corn 
(far),  whence  it  was  called  confarrcatio.  It  was  origi- 
nally confined  to  members  of  the  patrician  houses.  The 
other  was  a  purely  civil  act,  and  consisted  in  the  sale 
by  the  bride  of  herself,  with  the  approval  of  her  father 
or  her  guardian  (as  the  case  might  be),  to  the  bride- 
groom, apparently  accompanied  (though  there  is  a  con- 
troversy on  this  point)  by  a  contemporaneous  sale  by 
the  bridegroom  of  himself  to  the  bride.  The  trans- 
action was  carried  out  with  certain  formal  words  and 
in  the  presence  of  five  witnesses  (being  citizens)1,  be- 
sides the  man  who  held  the  scales  with  which  the  money 
constituting  the  price  was  supposed  to  be  weighed.  The 
price  was  of  course  nominal,  though  it  had  in  very  early 
times  been  real. 

These  two  forms  have  been  frequently  spoken  of  as 
if  they  were  indispensable  forms  of  marriage,  so  that 
marriage  had  always  the  Hand  power  as  its  consequence. 
But  this,  though  it  may  probably  have  been  the  case 
in  very  early  days,  was  not  so  in  those  historical  times 
to  which  I  must  confine  myself.  And  the  proof  of  this 
may  be  found  in  the  fact  that  if  a  woman  was  married 
without  either  of  the  above  forms,  she  did  not  pass  into 
the  Hand  of  her  husband  unless  or  until  she  had  lived 
with  him  for  a  year,  and  not  even  then  if  she  had  ab- 
sented herself  from  his  house  for  three  continuous  nights 
during  that  year 2.  And  where  the  Hand  power  had 
not  been  created,  the  property  rights  of  the  wife,  what- 
ever they  were  3,  remained  unaffected  by  the  marriage. 

1  There  has  been  much  dispute  as  to  this  ceremony  :  I  give  what  seems  the  most 
probable  view.     It  may  descend  from  a  more  ancient  sale  of  the  wife  by  her  rela- 
tives to  the  husband,  similar  to  that  which  we  find  in  some  primitive  peoples. 

2  This  was  in  pursuance  of  the  general  rule  that  rights  over  a  movable  were  ac- 
quired by  a  year's  continuous  holding  :  '  ususauctoritas  fundi  biennium,  caeterarum 
rerum  annuus  esto.' 

3  If  she  was  in  the  power  (potestas)  of  her  father,  she  had  no  property  of  her 
own.    If  she  was  sui  iuris^  she  was  under  guardianship. 


DIVOBCM  rs-J 

The  period  of  three  nights  is  fixed  in  the  Twelve  Tables, 
possibly  as  a  precise  definition  of  a  custom  previously 
more  uncertain. 

This  was  the  old  Roman  system,  and  a  very  singular 
system  it  was,  because  it  placed  side  by  side  the  extreme 
of  marital  control  as  the  normal  state  of  things  and  the 
complete  absence  of  that  control  as  a  possible  state  of 
'things.  Doubtless  the  marriages  with  Hand  were  in 
early  days  practically  universal,  resting  upon  a  sentiment 
and  a  social  usage  so  strong  that  women  themselves  did 
not  desire  the  free  marriage,  which  would  put  them  in 
an  exceptional  position,  outside  the  legal  family  of  the 
husband.  Nor  can  we  doubt  that  the  wide  power  which 
the  law  gave  to  the  husband  was  in  point  of  fact  re- 
strained within  narrow  limits,  not  only  by  affection,  but 
also  by  the  vigilant  public  opinion  of  a  comparatively 
small  community. 

IV.    CHANGE  FROM  THE  EARLIER  TO  THE  LATER 
SYSTEM  AT  ROME. 

Before  the  close  of  the  republican  period  the  rite  of 
confarrcatio  practically  died  out,  or  was  referred  to  as 
an  old-world  curiosity,  much  as  a  modern  English  lawyer 
might  refer  to  the  power  of  excommunication  possessed 
by  ecclesiastical  authorities.  The  patrician  houses  had 
become  comparatively  few,  and  the  daughters  of  those 
that  remained  evidently  did  not  wish  to  come  under  the 
Hand  power1.  The  form  of  cocmptio,  which  all  citizens 
might  use,  lasted  longer,  and  seems  to  have  been  not 
infrequently  applied  in  Cicero's  time.  Two  centuries 
later  it  also  was  vanishing,  and  Gaius  tells  us  that  the 
rule  under  which  uninterrupted  residence  created  the 
husband's  power  of  Hand,  and  might  be  stopped  by 

1  Nevertheless  it  was  retained  in  a  few  families  for  the  purpose  of  providing  per- 
sons who  could  hold  four  great  priestly  offices,  since  by  ancient  usage  none  save 
those  born  from  a  marriage  with  confarreation  were  able  to  serve  these  priesthoods. 
But  its  operation  seems  to  have  been  restricted  by  a  decree  of  the  senate  so  as  to 
apply  only  so  far  as  religious  rites  were  concerned  (quoad  sacra)  (Gai  Inst.  \.  136). 


790  MARRIAGE  AND  DIVORCE 

the  wife's  three  nights'  absence,  had  completely  disap- 
peared (Gai  Inst.  i.  in).  So  we  may  say  broadly  that 
from  the  time  of  Julius  Caesar  onwards  the  marriage 
without  Hand  had  become  the  rule,  while  from  the  time 
of  Hadrian  onwards  the  legal  acts  that  had  usually  ac- 
companied marriage,  which  placed  the  wife  under  the 
husband's  control,  were  almost  obsolete. 

This  was  a  remarkable  change.  The  Roman  wife  in 
the  time  of  the  Punic  Wars  had,  with  rare  exceptions, 
been  absolutely  subject  to  her  husband.  She  passed  out 
of  her  original  family,  losing  her  rights  of  inheritance  in 
it.  Her  husband  acquired  all  her  property.  He  could 
control  her  actions.  He  sat  as  judge  over  Her,  if  she 
was  accused  of  any  offence,  although  custom  required 
that  a  sort  of  council  of  his  and  her  relatives  should  be 
summoned  to  advise  him  and  to  see  fair  play.  He  could 
put  her  to  death  if  found  guilty.  He  could  (apparently) 
sell  her  into  a  condition  practically  equivalent  to  slavery, 
and  could  surrender  her  to  a  plaintiff  who  sued  him  in 
respect  of  any  civil  wrong  she  had  committed,  thereby 
ridding  himself  of  liability.  One  can  hardly  imagine  a 
more  absolute  subjection  to  one  person  of  another  per- 
son who  was  nevertheless  not  only  free  but  respected 
and  influential,  as  we  know  that  the  wife  in  old  Rome 
was.  It  would  be  difficult  to  understand  how  such  a 
system  worked  did  we  not  know  that  manners  and  pub- 
lic opinion  restrain  the  exercise  of  legal  rights. 

Such  was  the  old  practice.  Under  the  new  one,  uni- 
versal in  the  time  of  Domitian  and  Trajan,  which  is  also 
the  time  of  Tacitus,  Juvenal  and  Martial,  the  Roman 
wife  was  absolutely  independent  of  her  husband,  just 
as  if  she  had  remained  unmarried.  He  had  little  or 
no  legal  power  of  constraint  over  her  actions.  Her 
property,  that  which  came  to  her  by  gift  or  bequest 
as  well  as  that  which  she  earned,  remained  her  own 
to  all  intents  and  for  all  purposes.  She  did  not  enter 
her  husband's  family,  and  acquired  only  a  very  limited 
right  of  intestate  succession  to  his  property. 


MARRIAGE  AND  DIVORCE  791 

This  striking  contrast  may  be  explained  by  the  fact 
that  the  disabilities  which  attached  to  the  wife  under 
the  old  system  were  not  in  legal  strictness  the  conse- 
quence of  marriage  itself,  but  of  legal  acts  which  an 
almost  universal  sentiment  and  custom  had  attached 
to  marriage,  though  in  themselves  acts  distinct  from 
it.  A  perfectly  valid  marriage  could  exist  without  these 
legal  acts,  and  so  far  back  as  our  authorities  carry  us, 
we  find  that  a  few,  though  probably  originally  only  a 
very  few,  marriages  did  take  place  without  them.  Ac- 
cordingly when  sentiment  changed,  and  custom  no 
longer  prescribed  the  use  of  confarreation  or  coemp- 
tion, the  power  of  Hand  vanished  of  itself  and  vanished 
utterly.  Had  it  been  an  essential  part  of  the  marriage 
ceremony,  it  would  doubtless  have  been  by  degrees 
weakened  in  force  and  accommodated  to  the  ideas  of 
a  new  society.  But  no  legislation  was  needed  to  emanci- 
pate the  wife.  The  mere  omission  to  apply  one  or  other 
of  the  old  concomitants  gave  the  marriage  relation  all 
the  freedom  the  parties  could  desire  and  perhaps  more 
than  was  expedient  for  them. 

We  may  now  dismiss  these  ancient  forms  and  address 
ourselves  to  the  position  of  the  wife  under  the  normal 
marriage  of  later  times — the  so-called  '  free  marriage,' 
since  this  is  the  form  in  which  the  Roman  institution 
descended  to  and  has  affected  modern  law  l. 

V.    LATER  MARRIAGE  LAW:  PERSONAL  RELATION 
OF  THE  CONSORTS. 

The  following  points  deserve  to  be  noted  as  charac- 
terizing the  Roman  view. 

The   act   whereby   marriage   was    contracted   was    a 

1  I  pass  by  the  distinction  between  iustae  nuptiae,  which  could  be  contracted 
only  between  Roman  citizens,  and  the  so-called  '  natural '  marriage,  or  matri- 
monium  turfs  gentium,  which  was  created  by  the  marriage  of  a  full  citizen  to  a 
half  citizen  or  an  alien  (peregrinus},  because  the  latter  is  of  no  consequence  for  our 
purpose,  and  practically  disappeared  when  all  Roman  subjects  became  citizens.  It 
was  a  perfectly  valid  marriage,  and  the  children  were  legitimate.  As  to  their 
status,  see  Gai  Inst.  i.  78,  79. 


792  MARRIAGE  AND  DIVORCE 

purely  private  act.  No  intervention  of  any  State  offi- 
cial, no  registration  or  other  public  record  of  any  sort 
was  required.  The  two  parties,  and  the  two  parties  only, 
were  deemed  to  be  concerned1. 

The  act  was  a  purely  civil  act,  to  which  no  religious 
or  ecclesiastical  rite  was  essential  either  in  heathen  or 
in  Christian  times.  There  were  indeed  what  may  be 
called  decorative  ceremonies,  some  of  which  we  find 
mentioned  in  poems  like  the  famous  Epithalamium  of 
Catullus,  but  they  had  no  more  to  do  with  the  legal 
nature  and  effect  of  the  matter  than  has  the  throwing 
of  old  shoes  or  rice  at  a  modern  English  wedding. 

The  act  required  no  prescribed  form.  It  consisted 
solely  in  the  reciprocally  expressed  consent  of  the 
parties,  which  might  be  given  in  any  words,  or  be 
subsequently  presumed  from  facts.  '  Marriage  is  con- 
tracted by  consent  only '  (miptiae  solo  conscnsu  contra- 
huntur)  is  the  invariable  Roman  maxim.  Even  the  con- 
ducting of  the  bride  to  the  bridegroom's  house,  which 
has  sometimes  been  represented  as  necessary  2,  seems 
to  have  been  regarded  rather  as  evidence  needed  in 
certain  cases  than  as  essential  to  the  validity  of  the  act  3. 
A  generally  prevalent  usage  made  a  formal  betrothal 
(sponsalia)  precede  the  actual  wedding.  But  the  be- 
trothal promise  created  no  legal  right.  No  action  lay 
upon  it,  such  as  that  which  English  and  Anglo-Ameri- 
can law  unfortunately  allows  to  be  brought  for  breach 

1  Where  either  party  was  subject  to  the  paternal  power  of  his  or  her  father  (or 
grandfather),  the  consent  of  the  father  (or  grandfather)  (or  both)  was  required, 
though  in  a  few  specified  cases  it  might  be  either  dispensed  with  or  compelled. 
This  was  a  consequence  of  the  Roman  family  system.     It  was  irrespective  of  the 
age  of  bride  or  bridegroom. 

2  The  Emperor  Majorian  (A.D.  455-461)  is  said  to  have  issued  a  constitution  for 
the  Western  Empire,  making  the  creation  of  a  dos  essential  to  the  validity  of  a  mar- 
riage ;  but  this  provision,  which  can  hardly  have  been  intended  to  be  general, 
seems  to  have  never  taken  effect.    The  Western  Empire  was  then  in  the  throes  of 
dissolution. 

3  See  Paul.,  Sent.  Recept.  xix.  8  ;  Dig.  xxii.  2.  5.    The  suggestion  which  maybe 
found  in  some  modern  writers  that  Marriage  fell  within  the  class  of  the  contracts 
created  by  the  delivery  of  an  object  (the  so-called  Real  Contracts),  has  no  Roman 
authority  in  its  favour,  and  is  indeed  based  on  a  misconception  of  the  nature  of 
those  four  contracts,  in  all  of  which  the  obligation  created  is  for  the  restoring  of 
the  object  delivered.    Marriage  is  assuredly  not  a  bailment. 


MARRIAGE  AND  DIVORCE  793 

of  promise  of  marriage.  In  early  times  formal  and  bind- 
ing stipulations  seem  to  have  been  often  made  on  each 
side  between  the  bridegroom  and  the  father  (or  other 
male  relative)  of  the  bride  for  the  giving  and  receiv- 
ing of  the  bride;  and  if  the  promise  were  broken  without 
sufficient  cause,  an  action  lay  against  the  party  in  fault 
for  the  worth  of  the  marriage1.  This,  however,  dis- 
appeared. Under  the  influence  of  a  more  refined  senti- 
ment, not  only  could  no  promise  of  marriage  be  en- 
forced, but  if  the  parties  made  a  contract  whereby  each 
bound  him  or  herself  to  the  other  in  a  penal  sum  to 
become  payable  in  case  of  breach,  such  a  provision  was 
held  to  be  disgraceful  (pactum  turpe)  as  well  as  invalid. 
This  was  the  law  of  later  republican  and  imperial  times. 
Betrothal  had,  however,  some  legal  effects.  It  entitled 
either  of  the  betrothed  parties  to  bring  an  action  for  an 
injury  (of  an  insulting  nature)  offered  to  the  other.  It 
rendered  any  one  infamous  who  being  betrothed  to  one 
person  contracted  betrothal  to  another.  It  entitled 
either  party,  if  the  espousal  was  broken  off  before  mar- 
riage, to  reclaim  whatever  gifts  he  or  she  might  have 
bestowed  upon  the  other. 

As  regards  personal  status,  the  wife  acquired  that  of 
her  husband  (unless  either  had  been  formerly  a  slave), 
and  his  domicil  became  hers.  In  the  old  days  of  Hand 
power  she  had  taken  the  name  of  his  gens,  but  now 
she  retained  her  own,  besides  her  personal  '  first  name  ' 
(pracnomcn)  (e.g.  Tertia)  2.  Each  spouse  being  interested 
in  the  character  and  reputation  of  the  other,  he  could 
sue  for  damages  if  any  insult  was  offered  to  her,  she 
for  insult  to  him.  He  is  bound  to  support  her  in  a 
manner  suitable  to  their  rank,  whatever  her  private 
means  may  be.  Though  each  can  bring  an  action  against 

1  This  was  at  any  rate  a  usage  among  the  Latins  ;  but  how  far  in  Rome  seems 
doubtful. 

2  Under  the  Empire  we  usually  find  women  using  two  names,  from  their  father's 
gens  and  family  (e.g.  Caecilia  Metella).     Sometimes,  it  would  seem,  the  name  of 
the  father's  gens  was  followed  by  one  taken  from  the  mother  (e.g.  lunia  Lepida, 
Annaea  Faustina).    The  subject  is  fully  discussed  by  Mommsen,  in  his  Romisches 
Staatsrecht. 


794  MARRIAGE  AND  DIVORCE 

the  other,  the  action  must  not  be  one  which  affects 
personal  credit  and  honour  (actio  infamans),  and  hence, 
though  each  has  his  and  her  own  property,  neither  can 
proceed  against  the  other  by  a  civil  action  of  theft,  even 
if  the  property  seized  was  seized  in  contemplation  of  a 
divorce1.  It  need  hardly  be  added  that  if  the  wife's 
father,  or  grandfather,  were  living,  she  would  remain, 
unless  she  had  been  emancipated,  subject  to  the  paternal 
power,  being  for  all  legal  purposes  a  member  of  her 
original  family  and  not  of  her  husband's.  But  the  per- 
son in  whose  power  she  is  cannot  (at  least  in  imperial 
days)  take  her  away  from  her  husband.  Antoninus  Pius 
forbade  a  happy  marriage  to  be  disturbed  by  a  father; 
and  in  the  third  century  (perhaps  earlier)  the  husband 
could  proceed  by  way  of  interdict  to  compel  a  father 
to  restore  his  wife  to  him  2. 

VL    LATER  LAW.     PECUNIARY  RELATIONS  OF  THE 
CONSORTS. 

This  curiously  detached  position  of  the  two  consorts 
expressed  itself  in  their  pecuniary  relations.  Each  had 
complete  disposal  of  his  or  her  property  by  will  as  well 
as  during  life,  though  the  wife  needed,  down  to  a  com- 
paratively late  time,  the  authority  of  her  guardian3. 
Neither  had  originally  any  right  of  succession  to  the 
other  in  case  of  intestacy,  nor  had  the  wife  any  right  of 
intestate  succession  to  her  children  nor  they  to  her,  ex- 
cept that  which  the  Praetor  gave  them  among  the  blood 
relatives  (cognati)  generally,  after  the  agnates  (persons 
related  through  males).  A  state  of  things  so  inconsistent 
with  natural  feeling  could  not  however  always  continue, 

1  A  special  action  (rerutn  amotarum)  was  given  in  this  case.    Some  jurists  held 
that  the  joint  enjoyment  of  household  goods  made  the  conception  of  Theft  inappli- 
cable to  a  wife's  dealings,  however  unauthorized,  with  her  husband's  property. 
Dig.  xxv.  2.  i. 

2  Dig.  xliii.  30.  2. 

3  The  guardianship  of  women  of  full  age  seems  to  have  died  out  after  women 
received  power  to  select  a  guardian  for  themselves,  a  change  which  of  course  made 
his  action  purely  formal. 


MARRIAGE  AND  DIVORCE  795 

so  the  Praetor  created  a  rule  of  practice  whereby  each 
consort  had  a  reciprocal  right  of  succession  to  the  other. 
But  even  in  doing  so,  he  placed  this  succession  after  that 
of  other  blood  relations,  as  far  as  the  children  of  second 
cousins.  This  postponement  of  a  consort  to  blood  rela- 
tives was  carried  even  further  by  Justinian's  legislation, 
for  that  emperor  extended  the  category  of  relatives  who 
could  succeed  in  case  of  intestacy,  and  made  no  pro- 
vision for  the  wife  (beyond  that  which  the  Praetor  had 
made),  except  to  some  small  degree  in  case  of  a  neces- 
sitous widow.  The  relationship  of  mother  and  child  re- 
ceived a  somewhat  fuller  recognition,  for  laws  (Senatus 
Consultum  Tcrtullianum,  Sc.  Orphitianuni)  of  the  time 
of  Hadrian  and  Marcus  Aurelius  gave  the  mother  and 
the  children  reciprocal  rights  of  inheritance1,  which, 
finding  a  place  in  the  general  scheme  of  succession 
based  on  consanguinity  which  Justinian  established, 
have  passed  into  modern  law. 

Distinct  as  were  the  personalities  of  the  two  consorts 
in  respect  of  property,  the  practical  needs  of  a  joint 
life  recommended  some  plan  under  which  a  provision 
might  be  made  for  the  expenses  of  a  joint  household. 
This  sprang  up  as  soon  as  marriages  without  the  con- 
comitant creation  of  the  Hand  power  had  grown  com- 
mon. It  became  usual  for  the  wife  to  bring  with  her 
land  or  goods,  either  her  own,  if  she  were  independent, 
or  bestowed  by  her  father  or  other  relative.  This  pro- 
perty, which  was  destined  for  the  support  of  the  married 
pair  and  their  children,  was  called  the  Dos,  a  term  which, 
since  it  denotes  the  wife's  contribution  to  the  matri- 
monial fund,  must  not  be  translated  by  our  English  word 
Dower,  for  that  term  describes  the  right  of  a  wife  who 
survives  her  husband  to  have  a  share  in  his  landed  es- 
tate. Many  rules  sprang  up  regarding  the  Dos,  rules 
probably  due  in  the  first  instance  to  custom,  for  as  the 
instruments  of  marriage  contracts  were  usually  drawn 

1  The  mother's  succession  was  originally  granted  only  where  she  had  borne  three 
children  (if  a  freed-woman,  four). 


796  MARRIAGE  AND  DIVORCE 

on  pretty  uniform  lines,  these  lines  ultimately  became 
settled  law1.  The  general  principle  came  to  be  that 
property  given  from  the  wife's  side,  whether  by  her 
father,  or  by  herself,  or  by  some  of  her  relatives,  became 
subject  to  the  husband's  right  of  user  while  the  mar- 
riage lasted,  as  enabling  him  to  fulfil  his  obligation  to 
support  wife  and  children,  but  at  the  expiry  of  the 
marriage  by  the  death  (natural  or  civil)  of  either  party, 
or  by  divorce,  reverted  to  the  wife  or  her  heirs  2.  If, 
however,  the  property  had  been  given  by  the  wife's 
father,  he  might,  if  still  living,  reclaim  it  3.  The  Dos  is 
said  by  the  Romans  to  be  given  for  the  purpose  of  sup- 
porting the  burden  of  married  housekeeping,  and  there- 
fore the  administration  and  usufruct  of  it  pertain  to  the 
husband,  while  the  ultimate  ownership  remains  in  the 
wife,  or  in  the  father  who  constituted  it,  as  the  case 
may  be.  In  the  later  imperial  period  a  sort  of  second 
form  of  matrimonial  property  was  introduced,  called  the 
gift  for  the  sake  of  marriage  (donatio  propter  nuptias). 
It  was  made  by  the  husband,  and  remained  his  property 
both  during  and  after  the  marriage.  So  far,  as  it  was 
only  theoretically  separated  from  other  parts  of  the 
husband's  estate,  it  might  seem  to  have  no  importance. 
But  if  he  became  insolvent,  it  did  not,  like  the  rest  of 
his  property,  pass  to  his  creditors,  but  went  over  to  the 
wife,  just  as  the  Dos,  although  administered  by  the  hus- 
band, remained  unaffected  by  his  insolvency.  And  just 
as  the  husband  was  entitled,  where  a  divorce  was  caused 
by  the  wife's  fault,  to  retain  a  part  of  the  Dos,  so  if  a 
divorce  was  caused  by  the  husband's  fault,  the  donatio 
propter  nuptias,  or  a  part  of  it,  might  be  claimed  by  the 

1  The  'custom  of  conveyancers'  has  worked  itself  into  English  law  in  a  some- 
what similar  way. 

2  This  was  the  rule  as  settled  by  Justinian.     Before  his  time,  the  husband  took 
the  Dos  at  the  wife's  death  unless  it  had  been  given  by  her  father. 

1  There  are  many  less  important  rules  regarding  the  extent  of  the  husband's 
interest  and  the  form  in  which  the  property  is  to  be  restored  at  the  end  of  the  mar- 
riage, which  it  is  not  necessary  to  set  forth,  as  they  do  not  affect  the  general  prin- 
ciple. Indeed  generally  through  these  pages  I  am  forced,  for  the  sake  of  clearness 
and  brevity,  to  omit  a  number  of  minor  provisions.] 


MARRIAGE  AND  DIVORCE  797 

injured  wife.  The  similarity  of  some  of  these  arrange- 
ments to  the  practice  of  English  marriage  settlements 
will  occur  to  every  one's  mind,  though  in  England  settle- 
ments are  always  created  and  governed  by  the  provisions 
of  the  deeds  which  create  them,  whereas  in  Rome,  al- 
though special  provisions  were  frequently  resorted  to, 
there  arose  a  general  legal  doctrine  whose  provisions 
were  applicable  to  gifts  made  upon  or  in  contemplation 
of  marriage. 

One  further  point  needs  to  be  mentioned.  It  was 
a  very  old  customary  (or,  as  we  should  say,  common 
law)  rule  of  Roman  law  that  neither  of  the  wedded 
pair  could  during  the  marriage  bestow  gifts  upon  the 
other,  the  reason  assigned  being  the  risk  that  one  or 
other  might  by  the  exercise  of  the  influence  arising 
from  their  relation  be  deprived  of  his  or  her  property 
to  his  or  her  permanent  damage  (nc  mntnato  amorc  in- 
-ciccm  spoUarcntur).  This  principle,  which  protects  the 
wife  from  being  either  wheedled  or  bullied  out  of  her 
separate  property,  and  may  be  compared  with  the  Eng- 
lish restraint  on  alienation  or  anticipation  applied  to  a 
wife's  settled  property,  was  also  held  to  be  occasionally 
needed  to  protect  the  husband's  interests,  and  those  of 
the  children,  from  suffering  at  the  hands  of  a  grasping 
wife.  It  issues  from  the  view  which  the  Roman  jurists 
enounce  that  affection  must  not  be  abused  so  as  to  ob- 
tain pecuniary  gain;  and  one  jurist  adds  that  if  either 
party  were  permitted  to  make  gifts  the  omission  to  make 
them  might  lead  to  the  dissolution  of  the  marriage,  and 
so  the  continuance  of  marriages  would  be  purchasable  J. 
Such  gifts  were  accordingly  held  null  and  void,  the  only 
exception  being  that  where  property  actually  given  had 
been  left  in  the  donee's  hands  until  the  donor's  death, 
the  heir  of  the  donor  could  not  reclaim  it  from  the  sur- 

1  k  Sextus  Caecilius  et  illam  causam  adiciebat,  quia  saepe  futurum  esset  ut  dis- 
cuterentur  matrimonia  si  non  donaret  is  qui  posset  atque  ea  ratione  eventurum  ut 
venalicia  essent  matrimonia.'  This  view  was  sanctioned  by  the  Emperor  Caracalla 
in  his  speech  to  the  senate,  which  introduced  the  exception  next  mentioned  in  the 
text ;  Dig.  xxiv.  i.  2. 


798  MARRIAGE  AND  DIVORCE 

viving  donee.  Needless  to  say  that  the  rule  only  covered 
serious  transfers  of  property,  and  did  not  apply  to  gifts 
of  dress  or  ornaments  or  such  other  tokens  of  affection 
as  may  from  time  to  time  pass  between  happy  consorts. 

VII.    GENERAL  CHARACTER  OF  THE  ROMAN  CONCEPTION 
OF  MARRIAGE. 

Reviewing  the  rules  which  regulated  marriage  with- 
out the  Hand  Power,  the  sole  marriage  of  the  classical 
times  of  Roman  law,  we  are  struck  by  three  things. 

The  conception  of  the  marriage  relation  is  an  alto- 
gether high  and  worthy  one.  A  great  jurist  defines  it 
as  a  partnership  in  the  whole  of  life,  a  sharing  of  rights 
both  sacred  and  secular1.  The  wife  is  the  husband's 
equal  2.  She  has  full  control  of  her  daily  life  and  her 
property.  She  is  not  shut  up,  like  the  Greek  wife,  espe- 
cially among  the  lonians,  in  a  sort  of  Oriental  seclusion, 
but  moves  freely  about  the  city,  not  only  mistress  of 
her  home,  but  also  claiming  and  receiving  public  re- 
spect, though  so  far  placed  on  a  different  footing  from 
men,  and  judged  by  a  standard  more  rigid  than  ours, 
that  it  was  deemed  unbecoming  for  her  to  dance  and 
shocking  for  her  to  drink  wine. 

The  marriage  relation  is  deemed  to  be  wholly  a  mat- 
ter of  private  concern  with  which  neither  the  State  nor 
(in  Christian  times)  the  Church  has  to  concern  itself. 
This  was  so  far  modified  under  the  Emperors,  that  the 
State,  from  the  time  of  Augustus,  began  to  try  to  dis- 
courage celibacy  and  childlessness  in  the  interests  of  the 
maintenance  of  an  upper  class  Roman  population,  as 
opposed  to  one  recruited  from  freed  men  and  strangers. 
But  these  efforts  were  not,  as  we  shall  see,  incompatible 
with  adherence  to  the  general  principle  that  the  forma- 
tion and  dissolution  of  the  tie  required  no  State  inter- 

1  '  Nuptiae  sunt  coniunctio  maris  et  f  eminae  et  consortium  omnis  vitae,  divini  et 
humani  iuris  communicatio  ;'  Modestinus  in  Dig.  xxiii.  2.  i. 

2  This  was  expressed  in  the  phrase  which  the  bride  anciently  used  when  brought 
to  the  husband's  house :  '  Ubi  tu  Gaius,  ego  Gaia.' 


MARRIAGE  AND  DITOWI-:  799 

vention,  nor  even  any  form  prescribed  by  State  autho- 
rity. 

The  marriage  relation  rests  entirely  on  the  free  will 
of  the  two  parties  l.  If  either  having  promised  to  enter 
it  refuses  to  do  so,  no  liability  is  incurred.  If  either 
desires  to  quit  it,  he  or  she  can  do  so.  Within  it,  each 
retains  his  or  her  absolute  freedom  of  action,  absolute 
disposal  of  his  or  her  property. 

Compulsion  in  any  form  or  guise  is  utterly  opposed 
to  a  connexion  which  springs  from  free  choice  and  is 
sustained  by  affection  only. 

These  principles  have  a  special  interest  as  being  the 
latest  word  of  ancient  civilization  before  Christianity 
began  to  influence  legislation.  They  have  in  them  much 
that  is  elevated,  much  that  is  attractive.  They  embody 
the  doctrines  which,  after  an  interval  of  many  centuries, 
have  again  begun  to  be  preached  with  the  fervour  of 
conviction  to  the  modern  world,  especially  in  England 
and  the  United  States,  by  many  zealous  friends  of  pro- 
gress, and  especially  by  those  who  think  that  the  great- 
est step  towards  progress  is  to  be  found  in  what  is  called 
the  emancipation  of  woman. 

VIII.    DIVORCE  IN  ROMAN  LAW. 

Let  us  now  see  how  the  Roman  principles  aforesaid 
worked  out  in  practice  as  regards  domestic  morality 
and  the  structure  of  society,  that  structure  depending 
for  its  health  and  its  strength  upon  the  purity  of  home 
life  at  least  as  much  as  it  does  upon  any  other  factor. 

The  last  of  the  above-stated  three  principles  is  the 
derivation  of  all  the  attributes  of  the  marriage  relation 
from  the  uncontrolled  free  will  of  the  parties.  This 
principle  is  applied  to  the  continuance  of  the  relation 
itself.  With  us  moderns  the  tie  is  a  permanent  tie, 
which,  though  freely  formed,  cannot  be  freely  dissolved, 

1  '  Libera  matrimonia  esse  antiquitus  placuit,'  says  the  Emperor  Severus  Alex- 
ander in  the  third  century.    Cod.  viii.  38.  2. 


800  MARRIAGE  AND  DIVORCE 

whether  by  one  of  the  parties  or  by  both.  Very  dif- 
ferent was  the  Roman  view.  To  them  it  is  even  less 
binding  than  an  ordinary  business  contract.  Take  for 
instance  a  bargain  made  between  A  and  B  for  the  sale 
and  purchase  of  a  house.  Such  a  bargain  creates  what 
the  Romans  call  an  obligation,  a  bond  of  law  (vinculum 
iuris)  which  enables  either  of  the  contracting  parties  to 
require  the  other  to  fulfil  his  promise,  or  to  pay  damages 
in  case  of  default.  In  Roman  law  the  act  of  entering 
into  marriage  creates  no  such  bond.  The  business  con- 
tract can  be  rescinded  only  by  the  consent  of  both  the 
parties  to  it.  The  marriage  relation  can  be  terminated 
by  the  will  of  one  only.  Each  party  in  forming  it  pro- 
mised only  that  he,  or  she,  would  remain  united  to  the 
other  so  long  as  he,  or  she,  desired  so  to  remain  united. 
This  is  the  logical  consequence  of  the  principle  that  mar- 
riages should  be  free;  this  was  how  the  Romans  under- 
stood that  principle. 

Accordingly  divorce  can  be  effected  by  either  party 
at  his  or  her  pleasure,  the  doctrine  of  equality  between 
the  sexes  being  impartially  applied,  so  that  the  wife  may 
just  as  freely  and  easily  divorce  her  husband  as  the 
husband  may  divorce  his  wife. 

The  early  history  of  the  matter  is  somewhat  obscure, 
and  need  not  detain  us.  It  would  seem  probable  that 
in  the  old  days  when  marriage  was  accompanied  by  the 
Hand  power,  a  husband  might  put  away  his  wife  if 
she  had  been  convicted  before  the  domestic  council  of 
certain  grave  offences l ;  and  we  gather  that  in  such 
cases  she  was  entitled  to  demand  her  emancipation,  i.e. 
the  extinction  of  the  Hand  power,  by  the  proper  legal 
method  thereto  appointed.  Such  cases  were,  however, 
extremely  rare.  When  marriage  unaccompanied  by 
Hand  power  became  frequent,  we  do  not  at  first  hear 
of  any  divorces.  Our  authorities  declare  that  the  first 

1  A  so-called  'law  of  Romulus'  is  said  to  have  enumerated  poisoning  the  chil- 
dren, adultery,  and  the  use  of  false  keys  as  grounds  justifying  the  husband  in  di- 
vorcing his  wife,  no  parallel  right  being  granted  to  her.  And  there  seems  to  have 
been  a  provision  regarding  divorce  in  the  Twelve  Tables. 


MARRIAGE  AND  DIVORCE  801 

instance  of  divorce  at  Rome  (they  probably  mean  the 
first  where  no  crime  was  alleged)  was  furnished  by  a 
certain  Spurius  Carvilius  Ruga,  who  in  B.C.  231  got 
rid  of  his  wife,  although  warmly  attached  to  her,  on 
account  of  her  sterility.  Universal  displeasure  fell  upon 
him  for  his  conduct:  and  when  L.  Antonius  put  away 
his  wife  without  summoning  a  council  of  friends  and 
laying  the  matter  before  them,  the  Censors  removed 
him  from  his  tribe.  But  before  long  other  husbands 
were  found  to  imitate  Spurius  Carvilius.  In  the  second 
century  B.C.  divorce  was  no  longer  rare.  In  the  days  of 
Julius  Caesar  it  had  become  common,  and  continued 
to  be  so  for  many  generations.  The  fragrance  of  re- 
ligious sentiment  had  ceased  to  hallow  marriage,  and 
in  the  general  decline  of  morals  and  manners  it  was  one 
of  the  first  institutions  to  suffer  degradation.  Not  only 
Cn.  Pompey,  but  such  austere  moralists  as  Cato  the 
younger  and  the  philosophic  Cicero  put  away  their 
wives:  Cato  his  after  thirty  years  of  wedded  life,  Cicero 
two  in  rapid  succession. 

How  far  this  decline  had  gone,  even  before  the  days 
of  Cato  and  Cicero,  appears  from  the  singular  speech 
delivered  by  Q.  Caecilius  Metellus,  Censor  in  B.C.  131, 
in  which  he  recommended  a  law  for  compelling  every- 
body to  marry,  observing  that  if  it  were  possible  to 
have  no  wives  at  all,  everybody  would  gladly  escape 
that  annoyance,  but  since  nature  had  so  ordained  that 
it  was  not  possible  to  live  agreeably  with  them,  nor  to 
live  at  all  without  them,  regard  must  be  had  rather  to 
permanent  welfare  than  to  transitory  pleasure1.  We 
are  told  that  both  men  and  women,  especially  rich 
women,  were  constantly  changing  their  consorts,  on 
the  most  frivolous  pretexts,  or  perhaps  not  caring  to 

1  '  Si  sine  uxore,  Quirites,  possemus  esse,  omnes  ea  molestia  careremus,  sed  quo- 
niam  ita  natura  tradidit  ut  neque  cum  illis  commode  nee  sine  illis  ullo  modo  vivi 
possit,  saluti  perpetuae  potius  quam  brevi  voluptati  consulendum.'  Aul.  Cell.  Noct. 
Att.  \.  6  :  cf.  Liv.  Epit.  Book  lix,  and  Sueton.  Vit.  Aug.  Augustus,  according  to 
Gellius  and  Suetonius,  caused  this  speech,  delivered  a  century  before,  to  be  read 
aloud  in  the  Senate  in  support  of  his  bill  De  Maritandis  Ordinibus,  as  being  one 
which  might  fitly  have  been  made  for  their  own  times. 

51 


802  MARRIAGE  AND  DIVORCE 

allege  any  pretext  beyond  their  own  caprice.  Nothing 
more  than  a  declaration  of  the  will  of  the  divorcing 
party  was  needed:  and  this  was  usually  given  by  the 
husband  in  the  set  form  of  words,  *  keep  thy  property 
to  thyself '  (tuas  res  tibi  habeto}.  Little  or  no  social 
stigma  seems  to  have  attached  to  the  divorcing  partner, 
even  to  the  wife,  for  public  opinion,  in  older  days  a  rigid 
guardian  of  hearth  and  home,  had  now,  in  a  rich,  luxuri- 
ous, and  corrupt  society,  a  society  which  treated  amuse- 
ment as  the  main  business  of  life,  come  to  be  callously 
tolerant.  There  were  still  pure  and  happy  marriages, 
like  that  of  Cn.  Julius  Agricola  (the  conqueror  of 
Britain)  and  Flavia  Domitilla;  nor  is  it  necessary  to 
suppose  that  conjugal  infidelity  was  the  chief  cause  why 
unions  were  so  lightly  contracted  and  dissolved,  for  the 
mere  whims  of  self-indulgent  sybarites  account  for  a 
great  deal1.  Still  the  main  facts — the  prevalence  of 
divorce,  the  absence  of  social  penalties,  and  the  general 
profligacy  of  the  wealthier  classes — admit  of  no  doubt. 

The  Emperor  Augustus,  though  by  no  means  himself 
a  pattern  of  morality,  was  so  much  alarmed  at  a  laxity 
of  manners  which  threatened  the  well-being  of  the  com- 
munity, as  to  try  to  restrict  divorces  by  requiring  the 
party  desiring  to  separate  to  declare  his  or  her  intent 
in  the  presence  of  seven  witnesses,  being  all  full  Roman 
citizens.  This  rule,  enacted  by  the  lex  lulia  de  adulteriis, 
and  continued  down  till  Justinian's  time,  does  not  seem 
to  have  reduced  the  frequency  of  divorces,  though  it 
would  tend  to  render  the  fact  more  certain  in  each  case 
by  providing  indubitable  evidence.  Martial  and  Juvenal 
present  a  highly  coloured  yet  perhaps  not  greatly  ex- 
aggerated picture  of  the  license  of  their  time;  and  Seneca 
truly  observes  that  when  vice  has  become  embodied  in 
manners,  remedies  avail  nothing  (Desinit  esse  remedio 
locus  ubi  quae  f iterant  vitia  mores  sunf]. 

1  l  Aut  minus  aut  certe  non  plus  tricesima  lux  est 

Et  nubit  decimoiam  Thelesina  viro.'     Mart.  vi.  7. 


MARRIAGE  AND  DIVORCE  803 

IX.    INFLUENCE  OF  CHRISTIANITY  ON  THE  ROMAN 
DIVORCE  LAW. 

But  a  force  had  come  into  existence  which  was  to 
prove  itself  far  more  powerful  than  the  legislation  of 
Augustus  and  his  successors.  The  last  thing  that  these 
monarchs  looked  for  was  a  reformation  emanating  from 
a  sect  which  they  were  persecuting,  and  from  doctrines 
which  their  philosophers  regarded  with  contempt. 
Christianity  from  the  first  recognized  the  sanctity  of 
marriage,  and  when  it  became  dominant  (though  for  a 
long  time  by  no  means  omnipotent)  in  the  empire  a  new 
era  began.  The  heathen  emperors  might  probably  have 
been  glad  to  check  the  power  of  capriciously  terminat- 
ing a  marriage,  but  public  opinion,  which  clung  to  the 
principle  of  freedom,  would  have  been  too  strong  for 
them.  All  they  did  was  to  impose  pecuniary  penalties 
on  the  culpable  party  by  entitling  the  husband  to  retain 
one-sixth  of  the  Dos  in  case  of  the  wife's  infidelity,  one- 
eighth  if  her  faults  had  been  slighter,  to  which,  if  there 
were  children,  one-sixth  was  added  in  respect  of  each 
child,,  but  so  as  not  to  exceed  one-half  in  all.  (The 
custody  of  the  children  belonged  to  the  father  in  respect 
of  his  paternal  power.)  If  the  husband  was  the  guilty 
party,  he  was  obliged  to  restore  the  Dos  at  once,  instead 
of  being  allowed  a  year's  grace. 

Constantine  and  his  successors  had  a  somewhat  easier 
task,  because  the  Church  had  during  several  generations 
given  to  marriage  a  religious  character,  surrounded  its 
celebration  with  many  rites,  and  pronounced  her  bene- 
diction upon  those  who  entered  into  it.  A  new  sentiment, 
which  looked  on  it  as  a  union  permanent  because  hal- 
lowed was  growing  up,  and  must  have  to  some  extent 
affected  even  heathen  society,  which  remained  for  a 
century  after  Constantine  both  large  and  influential. 
Nevertheless,  even  the  Christian  emperors  did  not  ven- 
ture to  forbid  divorce.  They  heightened  the  pecuniary 
penalties  on  the  party  to  blame  for  a  separation  by  pro- 


804  MARRIAGE  AND  DIVORCE 

viding  that  where  the  misconduct  of  the  wife  gave  the 
husband  good  grounds  for  divorcing  her,  she  should 
lose  the  whole  of  the  Dos,  and  where  it  was  the  husband's 
transgressions  that  justified  the  wife  in  leaving  him,  he 
should  forfeit  to  her  the  property  he  had  settled,  the 
donatio  proptcr  nuptias.  In  both  these  cases  the  ultimate 
ownership  of  these  two  pieces  of  marriage  property  was 
reserved  to  the  children,  if  any,  the  husband  or  wife,  as 
the  case  might  be,  taking  the  usufruct  or  life  interest. 
If  there  was  no  Dos  or  Donatio,  then  the  culpable  party 
forfeited  to  the  innocent  one  a  fourth  part  of  his  or  her 
private  property.  The  definition  of  misconduct  included 
a  frivolous  divorce,  so  that  capricious  dissolutions  were 
in  this  way  discouraged. 

If  there  were  no  fault  on  either  side,  but  one  or  other 
partner  desired  to  put  an  end  to  the  marriage  for  the 
sake  of  entering  a  convent,  or  because  the  husband  had 
been  for  five  years  in  foreign  captivity1,  or  because 
there  had  never  been  any  prospect  of  offspring,  such  a 
divorce  was  allowed,  and  carried  no  pecuniary  penalty 
with  it.  It  was  called  divortium  bona  gratia. 

Finally,  if  both  the  parties  agreed  of  their  own  free 
wills  to  separate — the  divortium  communi  consensu — they 
might  do  so  without  assigning  any  cause  or  incurring 
any  liability.  This  rule,  which  prevailed  from  first  to 
last,  and  is  recognized  even  in  the  Digest  and  Code  of 
Justinian,  was  only  once  broken  in  upon.  In  an  ordi- 
nance issued  by  Justinian  in  his  later  years  (Novella 
Constitutio  cxxxiv)  the  pious  austerity  of.  the  reformer 
broke  out  so  vehemently  as  to  enact  that  where  hus- 
band and  wife  agreed  to  divorce  one  another  without 
sufficient  ground,  both  should  be  incapable  of  remar- 
riage and  be  immured  for  life  in  a  convent,  two-thirds 
of  their  property  going  to  their  children.  Even  then, 
however,  the  emperor  did  not  venture  to  pronounce 
the  divorce  legally  invalid.  The  will  of  the  parties  pre- 

*  The  older  doctrine  had  been  that  foreign  captivity  destroyed  marriage  ipso 
facto. 


.1/1 /////.I'//;   AND  DIVORCE  805 

vails,  and  they  die  unmarried,  though  they  die  in  prison. 
This  violation  of  the  established  doctrine  was,  however, 
too  gross  to  stand.  It  excited  general  displeasure,  and 
was  repealed  by  Justin  the  Second,  the  nephew  and  suc- 
cessor of  Justinian.  So  the  divorce  by  consent  lasted 
for  some  centuries  longer,  till  in  an  age  which  had  for- 
gotten the  ancient  Roman  ideas  and  was  pervaded  by 
the  conception  of  the  marriage  relation  which  religion 
had  instilled,  the  Emperor  Leo  the  Philosopher  declared 
this  form  of  separation  to  be  invalid. 

Through  the  whole  of  this  legislation  on  the  subject 
of  divorce,  which  is  far  more  minute  and  intricate  than 
the  briefness  of  the  outline  here  presented  can  convey, 
it  is  to  be  noted  that  the  Romans  held  fast  to  two  prin- 
ciples. One  was  the  wholly  private,  the  other  the  wholly 
secular,  character  of  wedlock.  There  is  no  legal  method 
prescribed  for  entering  into  a  marriage,  nor  any  public 
record  kept  of  marriages.  There  is  no  suit  for  divorce, 
no  public  registration  of  divorce.  The  State  is  not  in- 
voked in  any  way.  Neither  is  the  Church.  Powerful 
as  she  had  grown  before  Justinian's  time,  even  that 
sovereign  does  not  think  of  requiring  her  sanction  to  the 
extinction  of  the  marriage  which  in  most  cases  she  had 
blessed.  Either  party  has  an  absolute  right  to  shake 
off  the  bond  which  has  become  a  fetter.  He  or  she  may 
suffer  pecuniarily  by  doing  so,  but  the  act  itself  is  valid, 
valid  against  an  innocent  no  less  than  against  a  guilty 
partner,  and  valid  to  the  extent  of  permitting  remar- 
riage, except  (as  observed  in  the  last  paragraph)  for  a 
few  years  at  the  end  of  Justinian's  reign. 

Religion  had  consecrated  the  patrician  marriage  with 
the  sacred  cake  in  early  days,  and  there  had  been  a 
public  character  in  the  so-called  plebeian  marriage  with 
the  scales  and  five  witnesses.  But  the  marriage  of  the 
Christian  Empire  was  (so  far  as  law  went)  absolutely 
secular  and  absolutely  private. 


806  MARRIAGE  AND  DIVORCE 

X.    SOME  OTHER  FEATURES  OF  ROMAN  MARRIAGE 
LAW. 

Before  leaving  this  part  of  the  subject,  a  few  minor 
curiosities  of  the  Roman  marriage  law  deserve  to  be 
mentioned.  From  the  time  of  Augustus  there  were  in 
force,  during  some  centuries,  various  provisions  1  de- 
signed to  promote  marriage  and  the  bearing  of  children 
by  attaching  certain  burdens  or  disabilities  to  the  un- 
married and  childless.  Most  of  these,  being  opposed 
to  the  new  sentiment  which  Christianity  fostered,  were 
swept  away  by  the  Emperor  Constantine  and  his  suc- 
cessors. Others  fell  into  desuetude,  so  that  before  Jus- 
tinian's time  few  and  slight  traces  were  left  of  statutes 
that  had  exerted  a  great  influence  in  earlier  days,  though 
it  may  be  doubted  whether  they  did  much  to  promote 
morality.  The  tendency  of  Christian  teaching  rather 
was  in  favour  of  celibacy,  when  adhered  to  from  ascetic 
motives;  and  the  passion  for  a  monastic  life  which 
marked  the  end  of  the  fourth  century  told  powerfully 
in  this  direction,  especially  in  the  eastern  half  of  the 
empire. 

Similar  sentiments  worked  to  discourage  second  mar- 
riages, which  earlier  legislation  had  favoured,  though 
'  the  widow  who  remarried  within  the  year  of  mourning 
(originally  of  ten,  ultimately  of  twelve  months)  suffered 
infamy,  by  a  very  ancient  custom,  as  did  the  person  who 
wedded  her.  The  marriage  was,  however,  valid.  The 
Christian  emperors  punished  the  consort  who  married 
again  by  debarring  him  or  her  from  the  full  ownership 
of  any  property  which  came  to  him  or  her  through  the 
first  marriage  (lucra  nuptialia) ,  while  leaving  him  (or  her) 
the  usufruct  in  it.  But  this  applied  only  where  there 
were  children  of  the  first  marriage  living,  and  was 
mainly  prompted  by  a  desire  to  protect  their  interests 
against  a  step-parent.  The  ancient  world  was  singularly 
suspicious  of  step-mothers. 

1  Especially  those  contained  in  the  lex  lulia  et  Papia  Poppaea. 


MARRIAGE  AND  DI  \olfi;  807 

The  rules  with  regard  to  prohibited  degrees  of  matri- 
mony varied  widely  from  age  to  age.  In  early  Rome 
even  second  cousins  were  forbidden  to  intermarry. 
There  was  in  those  days  a  usage  permitting  near  rela- 
tives, as  far  a?  second  cousins,  to  kiss  one  another  with- 
out incurring  censure  (his  oscitli).  Plutarch  oddly  ex- 
plains the  permission  as  grounded  upon  the  right  of  the 
male  relatives  to  satisfy  themselves  in  this  way  that  the 
ladies  of  the  family  had  not  tasted  wine.  But  obviously 
the  wholesome  habits  of  a  simple  society  allowed  a  fa- 
miliar intercourse  among  kinsfolk  just  as  far,  and  no 
farther,  as  the  prohibition  of  marriage  between  them 
extended1.  Towards  the  end  of  the  republican  period, 
however,  we  find  that  even  first  cousins  might  marry, 
probably  by  custom,  for  we  hear  of  no  specific  enact- 
ments. Tacitus  (Ann.  xii.  6)  refers  to  the  practice  as  well 
established.  This  freedom  lasted  till  the  Emperor  Theo- 
dosius  the  First,  who  forbade  their  marriage  under  pain 
of  death  by  burning.  Though  the  penalty  was  subse- 
quently reduced,  marriages  of  first  cousins  continued 
to  be.  forbidden  and  punishable  in  the  western  half  of 
the  empire,  while  in  the  eastern  they  were  made  per- 
missible, and  remain  so  in  the  system  of  Justinian.  The 
marriage  of  uncle  or  aunt  with  niece  or  nephew  had 
been  prohibited,  though  apparently  by  no  statute,  until 
the  Emperor  Claudius,  desiring  to  marry  his  brother's 
daughter  Agrippina,  obtained  a  decree  of  the  Senate 
declaring  such  a  marriage  legal  2.  So  it  remained  for 
a  time,  though  the  marriage  of  an  uncle  with  a  sister's 
daughter,  or  of  an  aunt  with  a  nephew,  was  still  deemed 
incestuous.  Christianity  brought  a  change,  and  the  law 
of  Claudius  was  annulled  by  the  sons  of  the  Emperor 
Constantine.  It  was  also  by  these  sovereigns  that  mar- 
riage with  a  deceased  wife's  sister,  or  a  deceased  hus- 

1  It  is  a  curious  instance  of  the  variance  of  custom  in  this  respect,  that  after  it 
had  in  England  become  unusual  for  cousins  of  different  sexes  to  kiss  one  another, 
the  practice  remained  common  in  the  simpler  society  of  Scotland  and  still  more  in 
that  of  Ireland. 

2  Tac.  Ann.  xii.  5-7. 


808  MMflfLWU   AM)   DIVORCE 

band's  brother,  which  had  previously  been  lawful, though 
apparently  regarded  with  social  disapproval,  was  ex- 
pressly forbidden  1.  This  rule  was  adopted  by  Justinian, 
in  whose  Codex  it  finds  a  place  2. 

Besides  the  full  lawful  marriage  of  Roman  citizens, 
to  which  alone  the  previous  remarks  have  referred,  there 
were  two  other  recognized  relations  of  the  sexes  under 
the  Roman  law  3.  One  of  these  was  the  marriage  of  a 
citizen,  whether  male  or  female,  with  a  non-citizen,  i.e. 
a  person  who  did  not  enjoy  that  part  of  citizenship 
which  covered  family  rights  and  was  called  coiuiubinin. 
This  was  called  a  natural  marriage  (matrimonium  natu- 
rale,  matrimonium  inris  gentium}  as  existing  under  the 
Law  of  Nature  or  Law  of  the  Nations  (ins  gentium), 
as  contradistinguished  from  the  peculiar  law  of  Rome 
(ins  civile)  4.  It  was  a  perfectly  legal  union,  and  the 
children  were  legitimate :  as  of  course  were  the  children 
of  two  non-citizens  who  married  according  to  their  own 
law.  When  Roman  citizenship  became  extended  to  all 
the  subjects  of  the  empire,  the  importance  of  this  kind 
of  marriage  vanished,  for  it  could  thereafter  have  been 
applicable  (with  some  few  exceptions)  only  to  persons 
outside  the  Empire,  and  marriages  with  such  persons, 
who  were  prima  facie  enemies,  were  forbidden. 

The  other  relation  was  that  called  concubinage  (con- 
cubinatus).  It  was  something  to  which  we  have  no  pre- 
cise analogue  in  modern  law,  for,  so  far  from  being 
prohibited  by  the  law,  it  was  regulated  thereby,  being 
treated  as  a  lawful  connexion.  It  is  almost  a  sort  of 
unequal  marriage  (and  is  practically  so  described  by 
some  of  the  jurists)  existing  between  persons  of  different 
station — the  man  of  superior  rank,  the  woman  of  a  rank 

1  Many  other  prohibitions  of  marriages  applying  to  persons  holding  official  rela- 
tions, or  to  persons  of  widely  different  rank,  or  to  cases  where  adoptive  relation- 
ships come  in,  need  not  be  mentioned,  as  they  have  no  longer  any  great  interest. 

2  Cod.  Theod.  iii.  12,  2  sqq.  ;  Cod.  lustin.  v.  5.  5  and  8. 

3  The  connexion  of  two  slaves,  called  contubernium,  was  not  deemed  a  legal 
relation  at  all,  and  children  born  from  it  were  not  legitimate.    So  also  a  free  per- 
son could  not  legally  intermarry  with  a  slave. 

*  See  Essay  XI,  p.  570. 


MARRIAGE   A\'D   DIVORCE  800 

so  much  inferior  that  it  is  not  to  be  presumed  that  his 
union  with  her  was  intended  to  be  a  marriage.  It  leaves 
the  woman  in  the  same  station  in  which  it  found  her, 
not  raising  her,  as  marriage  normally  does,  to  the  hus- 
band's level.  The  children  born  in  such  a  union  are 
not  legitimate;  but  they  may  require  their  father  to  sup- 
port them,  and  are  even  allowed  by  Justinian,  in  one 
of  his  later  enactments  (Noz'ella  Ixxxix),  a  qualified  right 
of  intestate  succession  to  him.  They  of  course  follow 
their  mother's  condition,  and  they  have  a  right  of  in- 
heriting her  property.  Even  here  the  monogamic  prin- 
ciple holds  good.  A  man  who  is  married  cannot  have  a 
concubine,  nor  can  any  man  have  more  than  one  concu- 
bine at  a  time.  Though  regarded  with  less  indulgence 
by  the  Christian  emperors  than  it  had  been  by  their 
predecessors,  it  held  its  ground  in  the  Eastern  Empire, 
even  under  Justinian,  who  calls  it  a  '  permitted  con- 
nexion '  (licita  consuctndo),  and  was  not  abolished  till 
long  after  his  time  by  the  Emperor  Leo  the  Philosopher 
in  A.D.  887.  In  the  West  it  became  by  degrees  dis- 
credited, yet  doubtless  had  some  influence  on  the  prac- 
tice of  the  clergy,  the  less  strict  of  whom  continued  to 
maintain  irregular  matrimonial  relations  for  a  great 
while  after  celibacy  had  begun  to  be  enforced  by  ecclesi- 
astical authority. 

Children  born  in  concubinage  may  be  legitimated  by 
the  subsequent  marriage  of  their  parents,  according  to 
a  rule  first  introduced  by  Constantine,  and  subsequently 
enlarged  and  made  permanent  by  Justinian  (Cod.  v.  27, 
5  and  6;  Nov.  xii.  4;  Nov.  Ixxxix.  8);  a  rule  of  great 
importance,  which  was  long  afterwards  introduced  into 
the  Canon  Law  by  Pope  Alexander  III  in  A.D.  1160, 
and  has  held  its  ground  in  the  modern  Roman  law  of 
continental  Europe,  as  it  does  in  the  law  of  Scotland 
to  this  day.  The  bishops,  prompted  by  the  canonists, 
tried  to  introduce  it  in  England,  but  were  defeated  by 
the  opposition  of  the  barons,  who  at  the  great  council 
keld  at  Merton  in  20  Henry  III  (A.D.  1235-6)  refused 


810  MARRIAGE  AND  DIVORCE 

their  consent  in  the  famous  words,  '  We  will  not  change 
the  laws  of  England  which  hitherto  have  been  used  and 
approved1/  Nevertheless  such  power  of  legitimating 
the  children  of  a  couple  born  before  their  legal  marriage 
seems  to  have  been  part  of  the  ancient  customs  of  Eng- 
land before  the  Conquest.  The  children  were  at  the 
wedding  placed  under  a  cloak  which  was  spread  over 
the  parents,  and  were  from  this  called  in  Germany, 
France,  and  Normandy,  '  mantle  children  2.' 

I  have  already  dwelt  upon  the  most  striking  feature 
of  the  branch  of  legal  history  we  have  been  tracing,  the 
comparatively  sudden  passage  from  a  system  of  extreme 
strictness — under  which  the  wife's  personality,  with  her 
whole  right  of  property,  became  absolutely  merged  in 
that  of  her  husband — to  a  system  in  which  the  two  per- 
sonalities remained  quite  distinct,  united  only  by  the 
rights  which  each  had  in  matrimonial  property,  rights 
which  were  however  not  rights  of  joint-management, 
but  exercisable  (subject  to  limitations)  by  the  husband 
alone  so  long  as  the  marriage  lasted,  while  the  reversion 
was  secured  to  the  wife  or  her  relatives.  It  is  hardly 
less  noteworthy  that  these  two  contrasted  systems  did 
for  a  considerable  time  exist  side  by  side;  and  for  a  cen- 
tury, or  perhaps  more,  must  both  have  been  in  full 
vigour,  though  the  freer  system  was  obviously  gaining 
ground  upon  the  older  and  more  stringent  one. 

Another  fact,  though  more  easily  explicable,  is  also 
worth  noting.  In  its  earlier  stages  the  Roman  marriage 
bore  a  religious  character,  for  we  can  hardly  doubt  that 
in  primitive  times  Confarreation,  the  old  patrician  form 
with  the  sacrifice  and  the  holy  cake,  was  practically 

1  '  Ad  breve  Regis  de  bastardia  utrum  aliquis  natus  ante  matrimonium  habere 
poterit  hereditatem  sicut  ille  qui  natus  est  post.    Responderunt  omnes  Episcopi 
quod  nolunt  nee  possunt  ad  istud  respondere,  quia  hoc  esset  contra  communem 
formam  Ecclesie.     Ac  rogaverunt  omnes  Episcopi  Magnates  ut  consentirent  quod 
nati  ante  matrimonium  essent  legitimi  sicut  illi  qui  nati  sunt  post  matrimonium 
quantum  ad  successionem  hereditariam  quia  Ecclesia  tales  habet  pro  legitimis  ;  et 
omnes  comites  et  barones  una  voce  responderunt  quod  nolunt  leges  Anglic  mutare 
que  usitatate  sunt  et  approbate.'     20  Henr.  Ill,  Stat.  Mert. 

2  Pollock  and  Maitland,  vol.  ii.  p.  397.     I  have  heard  of  the  cloak  custom  as  ex- 
isting in  Scotland  down  almost  to  our  own  time. 


MARRIAGE  AbD   Dl  \Otfri-;  811 

universal  among  the  original  citizens,  before  the  plcbs 
came  into  a  separate  and  legally  recognized  existence. 
Hence  perhaps  it  is  that  marriage  is  described,  even 
when  that  description  had  ceased  to  have  the  old  mean- 
ing, as  a  '  sharing  of  all  rights,  both  religious  and  secu- 
lar/ In  its  middle  period,  which  covers  some  five  cen- 
turies, it  was  a  purely  civil  relation,  not  affected,  in  its 
legal  aspects,  by  any  rules  attributable  to  a  theological 
or  superstitious  source.  But  when  Christianity  became 
the  dominant  faith  of  the  Empire,  the  view  which  the 
Gospel  and  the  usages  as  well  as  the  teaching  of  the 
Church  had  instilled  began  thenceforward  to  influence 
legislation.  These  usages  did  not  indeed,  down  till  the 
eighth  century,  transform  the  fundamental  conception 
of  marriage  as  a  tie  formed  solely  by  consent,  and  need- 
ing the  intervention  neither  of  State  nor  of  Church. 
But  they  worked  themselves  into  the  doctrines  of  the 
Church  in  such  wise  that,  in  later  days,  they  succeeded 
in  making  matrimony  so  far  a  sacred  relation  as  to  give 
it  an  indissoluble  character,  and  not  only  restricted  the 
circle  of  persons  between  whom  it  could  lawfully  be 
contracted,  but  abolished  the  power  of  terminating  it  by 
the  mere  will  of  the  parties. 


XI.  MARRIAGE  UNDER  THE  CANON  LAW. 

When  direct  legislation  by  the  State  came  to  an  end 
in  Western  Europe  with  the  disappearance  of  the  effec- 
tive power  of  the  Emperors  in  the  fifth  and  sixth  cen- 
turies, the  control  of  marriage  began  to  fall  into  the 
hands  of  the  Church  and  remained  there  for  many  gene- 
rations. To  pass  from  the  civil  law  of  Rome  to  the 
ecclesiastical  law  of  the  Dark  and  Middle  Ages  is  like 
quitting  an  open  country,  intersected  by  good  roads, 
for  a  tract  of  mountain  and  forest  where  rough  and 
tortuous  paths  furnish  the  only  means  of  transit.  It 
would  be  impossible  within  the  limits  of  this  Essay 


812  MARRIAGE   AND   DIVORCE 

to  describe  that  law,  which  is  copious,  and  embarrassed 
by  not  a  few  controverted  points.  All  that  it  seems 
necessary  to  say  here  is  that  the  Canon  Law,  which 
was  collected  and  codified  in  the  thirteenth  and  four- 
teenth centuries,  so  far  adhered  to  the  established 
Roman  doctrine  as  to  recognize,  down  till  the  Council 
of  Trent,  the  main  principle  that  marriage  requires 
nothing  more  than  the  free  consent  of  the  parties,  ex- 
pressed in  any  way  sufficient  to  show  that  the  union 
which  they  contemplate  is  to  be  a  permanent  and  lawful 
union.  Marriage  no  doubt  became,  in  the  view  of  the 
mediaeval  Church,  as  of  the  Roman  Church  to-day,  a 
sacrament,  but  it  is  a  sacrament  which  the  parties  can 
enter  into  without  the  aid  of  a  priest.  Their  consent 
ought,  no  doubt,  in  the  view  of  the  Church  and  of 
Canon  law,  to  be  declared  before  the  priest  and  to  re- 
ceive his  benediction.  It  is  only  marriages  '  in  the  face 
of  the  Church  '  that  are  deemed  '  regular  '  marriages  *, 
and  the  Fourth  Lateran  Council  under  Innocent  the 
Third  directed  the  publication  of  banns.  But  the  irregu- 
lar marriage  is  nevertheless  perfectly  valid.  It  is  indis- 
soluble (subject  as  hereinafter  mentioned),  and  the  chil- 
dren born  in  it  are  legitimate.  A  good  ground  for  this 
indulgence  may  be  found  not  only  in  Roman  traditions, 
but  also  in  the  fact  that  the  Church  was  anxious  to  keep 
people  out  of  sin  and  to  make  children  legitimate,  so 
that  it  always  presumed  everything  it  could  in  favour  of 
lawful  matrimony. 

This  view  prevailed,  and  may  be  said  to  have  been 
the  common  law  of  Christendom,  as  it  had  been  of  the 
old  Roman  Empire,  down  till  the  Council  of  Trent  2. 
That  assembly,  against  the  strong  protests  of  some  of 
its  members,  passed  a  decree  (Sessio  XXIV,  cap.  i, 

1  See  Lord  Stowell's  famous  judgement  in  Lindo  v.  Belisario  (Consist.  Cases, 
p.  230),  where  'he  examines  in  an  interesting  way  the  requisites  of  marriage  under 
the  '  law  of  nature.' 

2  Canon  VII  of  Session  XXIV  anathematizes  those  who  deny  the  teaching  of 
the  Church  that  the  adultery  of  one  spouse  does  not  dissolve  the  vinculum  matri- 
monii,  and  Canon  X  those  who  deny  that  it  is  better  and  happier  to  remain  in  a 
state  of  virginity  or  celibacy. 


.i/ Mfifi  u;/;    \\i)  DIVORCE  81  :< 

De  Rcformationc  Matrimonii)  which,  after  reciting  that 
clandestine  marriages  had  been  held  valid,  though 
blameworthy,  declared  that  for  the  future  all  should 
be  deemed  invalid  unless  they  took  place  in  the  presence 
of  a  priest  and  of  two  or  three  witnesses.  Apparently 
it  was  not  so  much  for  the  sake  of  securing  the  blessing 
of  the  Church  upon  every  marriage  as  in  order  to  pre- 
vent scandals  which  had  arisen  from  the  breach  of  a  tie 
contracted  in  secret  that  the  change,  a  grave  and  memo- 
rable change,  was  made.  This  great  Council,  which  was 
intended  to  secure  the  union  of  Christendom  under 
the  See  of  Rome,  really  contributed  to  intensify  the 
separatist  forces  then  at  work :  and  from  it  onwards  one 
can  no  longer  speak  of  a  general  marriage  law  even  for 
Western  Europe.  Custom  and  legislation  took  thence- 
forward different  courses,  not  only  as  between  Pro- 
testant and  Roman  Catholic  nations,  but  even  as 
between  different  Protestant  nations,  there  being  no 
common  ecclesiastical  authority  which  Protestant  States 
recognized.  Thus  the  era  of  the  Reformation  is  an  era 
as  marked  in  the  history  of  marriage  law  as  was  the 
era  of  Constantine,  when  Christianity  began  to  be  domi- 
nant in  the  Roman  Empire.  And  we  shall  see,  when 
we  return  to  the  subject  of  divorce,  that  this  is  even 
more  strikingly  the  case  as  regards  the  dissolubility 
of  marriage  than  as  regards  the  mode  of  contract- 
ing it. 

Before  passing  on  to  sketch  the  legal  history  of  the 
institution  in  England — since  it  is  impossible  to  find 
space  here  for  an  account  of  its  treatment  in  the  laws 
of  other  European  States — it  is  well  to  note  what  had 
been  the  general  tendency  of  the  customary  law  of 
the  Middle  Ages  upon  the  character  of  the  marriage 
relation. 

One  may  sum  up  that  tendency  by  saying  that  it  had 
virtually  expunged  the  free  and  simple  marriage  of  the 
Romans  under  the  later  Republic  and  the  Empire,  and 
had  substituted  for  it  a  system  more  closely  resembling 


814  MARRIAGE  AND  DIVORCE 

that  of  the  religious  marriage  with  Hand  power  of  early 
Rome.  The  ceremony  had  practically  become  a  reli- 
gious one,  though  till  the  Council  of  Trent  a  religious 
service  was  not  absolutely  essential  to  its  validity.  The 
relation  had  become  indissoluble,  except  by  the  decree 
of  the  Pope,  who  in  this,  as  in  some  other  respects, 
practically  filled  the  place  of  the  old  Roman  Pontifex, 
though  of  course  both  confarreation  and  the  pontiff  had 
been  long  forgotten  * .  It  carried  with  it  an  absorption 
of  the  personality  of  the  English  wife  into  that  of  the 
husband,  whereby  all  her  property  passed  to  him  and 
she  became  subject  to  his  authority  and  control.  These 
conditions  were  the  result  partly  of  Teutonic  custom, 
partly  of  the  rudeness  of  life  and  manners;  and  such 
check  as  was  imposed  on  them  came  from  the  traditions 
of  the  Roman  law,  and  from  the  favour  which  the  Canon 
law,  much  to  its  credit,  showed  to  the  wife.  Of  this 
favour  some  have  found  a  trace  in  the  phrase  that  oc- 
curs in  the  '  Form  for  the  Solemnization  of  Matrimony  ' 
in  the  liturgy  of  the  Church  of  England,  where  the  bride- 
groom is  required  to  say  to  the  bride,  '  with  all  my 
worldly  goods  I  thee  endow ';  although,  in  point  of  fact, 
the  law  of  England  gives  to  the  bride  only  a  very  limited 
(and  now  easily  avoidable)  right  to  one-third  of  the 
husband's  real  estate  after  his  death  2. 


XII.    THE  ENGLISH  LAW  OF  MARRIAGE. 

The  influence  of  the  Roman  system  was,  of  course, 
less  in  England  than  in  countries  where,  as  in  France 
and  Italy,  the  Roman  law  had  maintained  itself  in  force, 

1  The  pontifices  had  a  certain  oversight  over  the  sacred  marriage  by  confarrea- 
tio,  and  their  action  was  needed  to  effect  a  diffareatio,  when  it  was  desired  to  ex- 
tinguish the  manus  of  the  husband  over  a  divorced  wife. 

2  Others  think  that  this  expression,  which  would  seem  to  refer  not  to  real  pro- 
perty but  to  chattels,  is  a  relic  of  ancient  Teutonic  custom.     As  is  observed  by 
Messrs.  Pollock  and  Maitland  (History  of  English  Law,  vol.  ii.  p.  401),  we  must 
not  assume  that,  from  the  days  of  savagery  down  to  our  own,  all  changes  have 
been  in  favour  of  women.    They  had  apparently  more  power  over  their  own  pro- 
perty in  Anglo-Saxon  times  than  in  the  thirteenth  century. 


MARRIAGE  AND  DIVORCE  815 

either  as  written  law  or  as  the  basis  of  customary  law. 
But  now  that  we  come  to  consider  the  course  which  the 
English  law  of  marriage  has  taken,  let  us  note  that  this 
law  has  flowed  in  two  distinct  channels  down  till  our 
own  time.  So  much  of  it  as  pertained  to  the  marriage 
relation  itself,  that  is  to  say,  to  the  capacity  for  contract- 
ing marriage  (including  prohibited  degrees),  to  the  mode 
of  contracting  it,  and  to  its  dissolution,  complete  or  par- 
tial, belonged  to  the  canon  or  ecclesiastical  law  and  was 
administered  in  the  spiritual  courts.  So  much  of  it  as 
affected  the  property  rights  of  the  two  parties  (and 
especially  rights  to  land)  belonged  to  the  common  law 
and  was  administered  in  the  temporal  courts.  This  di- 
vision, to  which  there  is  nothing  parallel  in  the  classical 
Roman  law,  was  of  course  due  to  the  fact  that  mediaeval 
Christianity,  regarding  marriage  as  a  sacrament,  placed 
it  under  the  control  of  the  Church  and  her  tribunals  in 
those  aspects  which  were  deemed  to  affect  the  spiritual 
well-being  of  the  parties  to  it.  Nevertheless  the  line  of 
demarcation  between  the  two  sides  was  not  always,  and 
indeed  could  hardly  be,  sharply  or  consistently  drawn. 
The  ecclesiastical  courts  had  a  certain  jurisdiction  as 
regards  property.  The  civil  courts  were  obliged,  for 
the  purposes  of  determining  the  right  of  a  woman  to 
dower  and  the  rights  of  intestate  succession,  to  decide 
whether  or  no  a  proper  and  valid  marriage  had  been 
contracted.  Their  regular  course  apparently  was  to 
send  the  matter  to  the  bishop's  court,  and  act  upon  the 
judgement  which  it  pronounced.  But  this  was  not  al- 
ways done.  They  often  had  to  settle  the  question  for 
themselves,  applying,  no  doubt,  as  a  rule  the  principles 
which  the  bishop's  court  would  have  followed,  and  (as 
has  been  explained  by  the  latest  and  best  of  our  English 
legal  historians1)  they  often  evaded  the  question  of 
whether  there  had  been  a  canonically  valid  marriage  by 
finding  that,  as  a  matter  of  fact,  the  parties  had  been 

1  Messrs.  Pollock  and  Maitland,  in  their  admirable  History  of  English  Law,  to 
which  the  reader  curious  in  these  matters  may  be  referred. 


816  MARRIAGE  AND  DIVORCE 

generally  taken  to  have  been  duly  wedded,  and  by  pro- 
ceeding to  give  effect  to  this  finding. 

The  ecclesiastical  lawyers  were  not  successful  in  their 
treatment  of  such  questions  as  fell  within  their  sphere. 
The  effort  to  base  legal  rules  on  moral  and  religious 
principles  leads  naturally  to  casuistry,  and  away  from 
that  common-sense  view  of  human  transactions  and 
recognition  of  practical  convenience  which  ought  to  be 
the  basis  of  law.  They  multiplied  canonical  disabilities 
arising  whether  from  pre-contract,  a  matter  to  which 
they  gave  a  far  greater  importance  than  had  previously 
belonged  to  it,  or  from  relationship,  either  of  con- 
sanguinity or  of  affinity;  and  they  indeed  multiplied 
these  impediments  to  such  an  extent  as  to  make  the 
capacity  of  any  two  parties  to  enter  into  matrimony 
matter  of  doubt  and  uncertainty,  giving  wide  opportuni- 
ties for  chicane,  and  an  almost  boundless  scope  for  the 
interposition  of  the  Roman  Curia,  whose  sale  of  dispen- 
sations became  a  fertile  and  discreditable  source  of  reve- 
nue. Their  treatment  of  divorce  will  be  presently  ex- 
amined. In  their  zeal  to  keep  Christian  people  out 
of  sin  they  recognized  many  clandestine  unions  as  valid, 
though  irregular,  marriages,  while  at  the  same  time 
applying  strict  rules  of  evidence  which  practically  with- 
drew much  of  the  liberty  that  had  been  granted  by  the 
lax  theory  of  what  constituted  a  marriage.  These 
tangled  subtleties  regarding  pre-contracts  and  pro- 
hibited degrees  were  at  the  time  of  the  Reformation 
swept  away  by  a  statute  of  1540  (32  Henry  VIII,  c.  38), 
which  declared  that  all  marriages  should  be  lawful  which 
were  '  not  prohibited  by  Goddis  lawe/  and  that '  no  reser- 
vation or  prohibition,  Goddis  lawe  except,  shall  trouble 
or  impeche  any  marriage  without  the  Levitical  degrees.' 

Two  principles,  however,  remained  unaffected  by  the 
legislation  of  this  period  in  England..  The  one  was  the 
indissolubility  of  marriage,  a  topic  to  which  I  shall  pre- 
sently return.  The  other  was  the  freedom  of  entering 
into  it,  consent,  and  consent  alone,  being  still  all  that 


MAMRIAGE  AND  DIVORCE  817 

was  necessary  to  make  a  marriage  valid1.  England, 
of  course,  did  not  recognize  the  decrees  of  Trent,  so 
the  old  law  continued  in  force  after  that  Council,  though 
motives  like  those  which  had  guided  the  Council  induced 
the  ecclesiastical  courts  to  lean  strongly  in  favour  of 
the  almost  universal  practice  of  marrying  before  a 
clergyman,  and  to  require  in  all  other  cases  very  strict 
evidence  that  a  true  consent,  directed  to  the  creation 
of  lawful  matrimony,  had  in  fact  been  given.  Moreover, 
where  the  marriage  had  been  irregular,  the  spiritual 
courts  might  compel  its  celebration  in  the  face  of  the 
Church.  So  things  went  on,  with  much  uncertainty  and 
some  confusion  between  the  act  needed  to  constitute 
marriage  and  the  evidence  of  that  act,  till  the  middle  of 
the  eighteenth  century,  when  a  statute  was  passed  in 
A.D.  1753  (26  Geo.  II,  c.  33)  which  required  all  marriages 
to  be  celebrated  by  a  clergyman  and  in  a  church  (unless 
by  dispensation  from  the  Archbishop  of  Canterbury), 
and  prescribed  other  formalities 2.  These  provisions 
remained  in  force  (except  as  to  Jews  and  Quakers)  until 
1836,  when  a  purely  civil  marriage  before  a  Registrar 
was  permitted  as  an  alternative  to  the  ecclesiastical 
ceremony  3.  During  the  Commonwealth  marriages  had 
been  contracted  before  justices  of  the  peace,  but  the 
Restoration  legislation,  while  validating  the  marriages 
so  formed,  abolished  the  practice.  The  old  law  remained 
in  Ireland,  and  that  was  how  the  question  what  kind  of 
marriage  ceremony  was  required  by  the  common  law 
came  before  the  House  of  Lords  in  the  famous  case  of 
Reg.  v.  Millis,  which  was  an  Irish  appeal,  and  the  decision 

1  The  House  of  Lords  was  equally  divided  upon  this  point  in  the  case  of  Reg.  v. 
Millis,  in  1843  :  but  historical  inquiry  tends  to  confirm  the  view  of  Lord  Stowell, 
that  the  presence  of  a  clergyman  was  not  essential  (see  Dalrymfle  v.  Dalrymple^ 
2  Haggard,  p.  54). 

8  The  English  Dissenters  soon  began  to  complain  of  this  Act,  as  they  were  thence- 
forth (until  1836)  obliged  to  be  married  in  church.  Charles  James  Fox  used  to  de- 
nounce the  Act  as  '  contrary  to  the  Law  of  Nature.' 

8  A  civil  marriage  is  not,  however,  compulsory  in  England  as  it  is  in  France  and 
some  other  continental  countries.  In  Scotland  it  has  now  become  fashionable  for 
Presbyterians  to  be  wedded  in  church,  but  the  Scottish  law,  as  every  one  knows, 
does  not  prescribe  either  a  clergyman  or  a  registrar. 


818  MARRIAGE  AND  DIVORCE 

in  which,  declaring  that  by  the  common  law  the  presence 
of  a  clergyman  was  required  to  make  a  marriage  valid, 
seems  to  have  been  erroneous. 

XIII.    PROPERTY    RELATIONS   OF   THE   CONSORTS  UNDER 
ENGLISH  LAW. 

Now  let  us  turn  to  the  effect  of  marriage  in  the  law 
of  England  upon  the  property  and  the  personal  rights 
of  the  wife. 

That  effect  has  generally  been  described  as  making 
the  two  consorts  one  person  in  the  law.  Such  they  cer- 
tainly were  for  some  purposes  under  the  older  Common 
Law  of  England.  The  husband  has  the  sole  manage- 
ment of  all  the  property  which  the  wife  had  when  mar- 
ried, or  which  she  subsequently  received  or  earned  by 
her  exertions.  In  acquiring  all  her  property  he  becomes 
also  liable  for  the  debts  which  she  owed  before  marriage, 
but  after  marriage  he  has  not  to  answer  for  any  con- 
tract of  hers,  because  her  agreements  do  not  bind  him 
except  for  necessaries.  He  is,  moreover,  liable  for 
wrongs  done  by  her.  He  cannot  grant  anything  to  her, 
or  covenant  with  her;  and  if  there  was  any  contract  be- 
tween him  and  her  before  marriage,  it  disappears  by 
her  absorption  into  his  personality.  She  can  bring  no 
action  without  joining  him  as  plaintiff,  nor  can  she  be 
sued  without  joining  him  as  defendant.  She  cannot  give 
evidence  for  or  against  him  (save  where  the  offence  is 
against  herself);  and  if  she  commit  a  crime  (other  than 
treason  or  murder)  along  with  him,  she  goes  unpunished 
(though  for  crimes  committed  apart  from  him  she  may 
be  prosecuted),  on  the  hypothesis  that  she  did  it  under 
his  compulsion.  So  in  a  case,  in  the  thirteenth  cen- 
tury, where  husband  and  wife  had  produced  a  forged 
charter,  the  husband  was  hanged  and  the  wife  went  free, 
'  because  she  was  under  the  rod  of  her  husband '  (quia 
fuit  sub  virga  viri  sui1). 

i  Pollock  and  Maitland,  vol.  ii.  ch.  vii.  p.  404  (quoting  Bracton,  429  b). 


MARRIAGE  AA'D   DIVORCE  sp.i 

But  this  theory  of  unity  is  not  so  consistently  main- 
tained as  was  the  similar  theory  of  the  Romans  regard- 
ing the  marriage  with  Hand  power.  For  the  wife's  con- 
sent to  legal  acts  may  be  effectively  given  where  she 
has  been  separately  examined  by  the  Court  to  ascer- 
tain that  her  consent  is  free;  and  even  the  fact  that  she 
must  be  joined  in  legal  proceedings  taken  by  or  against 
her  shows  that  she  has  a  personality  of  her  own,  whereas 
under  the  Roman  manus  she  was  wholly  sunk  in  that 
of  her  husband.  Thus  it  is  better  not  to  attempt  to 
explain  the  wife's  position  as  the  result  of  any  one  prin- 
ciple, but  rather  to  regard  it  as  a  compromise  between 
the  three  notions  of  absorption,  of  a  sort  of  guardian- 
ship, and  of  a  kind  of  partnership  of  property  in  which 
the  husband's  voice  normally  prevails. 

As  respects  her  personal  safety,  she  was  better  off 
than  the  Roman  wife  of  early  days,  for  the  husband 
could  punish  the  latter  apparently  even  with  death,  after 
holding  a  domestic  council,  whereas  the  English  hus- 
band could  do  no  more  than  administer  chastisement, 
and  that  only  to  a  moderate  extent.  The  marital  right 
of  chastisement  seems  to  have  been  an  incident  to  mar- 
riage in  many  rude  societies.  A  traveller  among  the 
native  tribes  of  Siberia  relates  that  he  found  a  leather 
whip  usually  hung  to  the  head  of  the  conjugal  bed,  al- 
most as  a  sort  of  sacred  symbol  of  matrimony;  and  he 
was  told  that  the  wife  complained  if  her  husband  did 
not  from  time  to  time  use  the  implement,  regarding  his 
neglect  to  do  so  as  a  sign  of  declining  affection.  And 
it  would  seem  that  this  notion  remains  among  the 
peasantry  of  European  Russia  to  this  day1. 

Everybody  has  heard  of  the  odd  habit  of  selling  a 
wife  which  still  occasionally  recurs  among  the  humbler 
classes  in  England;  and  most  people  suppose  that  it 
descends  from  a  time  when  the  Teutonic  husband  could 
sell  his  consort,  as  a  Roman  one  apparently  could  in 
the  days  of  Hand  power.  There  is,  however,  no  trace 

1  Kovalevsky,  Modern  Customs  and  Ancient  Laws  of  Russia,  p.  44- 


820  MARRIAGE  AND   DIVORCE 

at  all  in  our  law  of  any  such  right 1 ,  though  a  case  is 
reported  to  have  arisen  in  A.D.  1302,  when  a  husband 
granted  his  wife  by  deed  to  another  man,  with  whom 
she  thereafter  lived  in  adultery  2. 

The  compensation  given  to  the  English  wife  for  the 
loss  (or  suspension  during  the  marriage)  of  her  control 
over  her  property  is  to  be  found  in  her  right  of  Dower, 
that  is,  of  taking  on  her  husband's  death  one-third  of 
such  lands  as  he  was  seised  of,  not  merely  at  his  death, 
but  at  any  time  during  the  marriage,  and  which  any 
issue  of  the  marriage  might  have  inherited.  As  this 
right  interfered  with  the  husband's  power  of  freely  dis- 
posing of  his  own  land,  the  lawyers  set  about  to  find 
means  of  evading  it,  and  found  these  partly  in  legal  pro- 
cesses by  which  the  wife,  her  consent  being  ascertained 
by  the  courts,  parted  with  her  right,  partly  by  an  in- 
genious device  whereby  lands  could  be  conveyed  to  a 
husband  without  the  right  of  dower  attaching  to  them, 
partly  by  giving  the  wife  a  so-called  jointure  which 
barred  her  claim.  The  wife  has  also  a  right,  which  of 
course  the  husband  can  by  will  exclude,  of  succeeding 
in  case  of  intestacy  to  one-third  of  his  personal  property, 
or,  if  he  leave  no  issue,  to  one-half. 

This  state  of  things  hardly  justifies  the  sleek  op- 
timism of  Blackstone,  who  closes  his  account  of  the 
wife's  position  by  observing,  *  even  the  disabilities  which 
the  wife  lies  under  are,  for  the  most  part,  intended  for 
her  protection  and  benefit.  So  great  a  favourite  is  the 
female  sex  of  the  laws  of  England.'  The  Romans,  al- 
though they  allowed  to  women  a  fuller  independence, 
were  more  candid  when  they  said:  '  In  many  points  of 
our  law  the  condition  of  the  female  sex  is  worse  than 
that  of  the  male.' 

1  My  friend  Mr.  F.  W.  Maitland,  whose  authority  on  these  matters  is  unsurpassed, 
informs  me  that  he  knows  of  no  such  trace.     The  practice,  however,  seems  to  have 
been  not  uncommon.     Several  instances  of  the  sale  of  a  wife  by  auction,  sometimes 
along  with  a  child,  are  reported  from  Kent  between  1811  and  1820. 

2  See  Pollock  and  Maitland,  vol.  ii.  p.  395. 


MARRIAGE  AND  DlYVRt'l-:  $21 

XIV.    GRADUAL  AMENDMENT  OF  THE  ENGLISH 
MATRIMONIAL  LAW. 

However,  the  Courts  of  Equity  ultimately  set  them- 
selves in  England  to  improve  the  wife's  condition.  They 
recognized  some  contracts  and  grants  between  husband 
and  wife.  They  allowed  property  to  be  given  to  trustees 
for  the  sole  and  separate  use  of  a  wife;  and  if  it  was 
given  to  her  with  an  obvious  intent  that  it  should  be 
for  her  exclusive  benefit,  they  held  the  husband,  in  whom 
by  operation  of  the  general  law  it  would  vest,  to  be 
a  trustee  for  the  wife.  When  during  marriage  there 
came  to  a  wife  by  will  or  descent  any  property  of  which 
the  husband  could  obtain  possession  only  by  the  help  of 
a  Court  of  Equity,  they  required  him  to  settle  a  reason- 
able part  of  it  upon  the  wife  for  her  separate  use.  And 
in  respect  of  her  separate  property,  they  furthermore 
permitted  the  wife  to  sue  her  husband,  or  to  be  sued 
by  him.  While  these  changes  were  in  progress,  there 
had  grown  up  among  the  wealthier  classes  the  habit  of 
making  settlements  on  marriage  which  secured  to  the 
wife,  through  the  instrumentality  of  trustees,  separate 
property  for  her  sole  use,  and  wherever  a  woman  was 
a  ward  of  Court,  the  Court  insisted,  in  giving  its  consent 
to  the  marriage,  that  such  a  settlement  should  be  made 
for  her  benefit. 

By  these  steps  a  change  had  been  effected  in  the 
legal  position  of  women  as  regards  property  similar  to, 
though  far  more  gradual,  and  in  its  results  falling  far 
short  of,  the  change  made  at  Rome  when  the  marriage 
without  Hand  power  became  general.  But  in  England 
a  recourse  to  the  Courts  has  always  been  the  luxury 
of  the  rich;  and  as  the  middle  and  poorer  classes  were 
not  wont  to  go  to  the  Courts,  or  to  make  settlements, 
it  was  only  among  the  richer  classes  that  the  wife's 
separate  estate  can  be  said  to  have  existed.  At  last, 
however,  the  gross  injustice  of  allowing  a  selfish  or 
wasteful  husband  to  seize  his  wife's  earnings  and 


823  MARRIAGE  AND  DIVORCE 

neglect  her  was  so  far  felt  that  several  Acts  were  passed 
(the  first  in  1857),  under  which  a  woman  deserted  by 
her  husband  may  obtain  from  a  magistrate  a  judicial 
order,  protecting  from  him  any  property  she  may 
acquire  after  desertion.  By  this  time  an  agitation  had 
begun  to  secure  wider  rights  for  married  women.  It 
had  great  difficulties  to  overcome  in  the  conservative 
sentiment  of  lawyers,  and  of  those  who  are  led  by  law- 
yers, and  more  especially  of  members  of  the  House  of 
Lords.'  Not  till  1870  did  the  British  Parliament  take  the 
step  which  the  Romans  had  taken  long  before  the  Chris- 
tian era,  and  which  many  American  States  had  taken 
in  the  first  half  of  the  nineteenth  century.  A  statute 
of  that  year,  amended  and  extended  by  others  of  1874 
and  1882,  swept  away  the  old  rule  which  carried  all  the 
wife's  property  over  to  the  husband  by  the  mere  fact  of 
marriage;  so  that  now  whatever  a  woman  possesses  at 
her  marriage,  or  receives  after  it,  or  earns  for  herself, 
remains  her  own  as  if  she  were  unmarried,  while  of 
course  the  husband  no  longer  becomes  liable  by  mar- 
riage to  her  ante-nuptial  debts.  By  these  slow  degrees 
has  the  English  wife  risen  at  last  to  the  level  of  the 
Roman.  The  practice  of  making  settlements  on  mar- 
riage still  remains,  especially  where  the  wife's  property 
is  large,  or  where  there  is  any  reason  to  distrust  the 
bridegroom;  for  though  the  interposition  of  trustees  is 
no  longer  needed  to  keep  the  property  from  falling  by 
operation  of  law  into  the  husband's  grasp,  he  may  still 
press  or  persuade  her  to  part  with  it,  since  she  now 
enjoys  full  disposing  power,  and  if  she  does  part  with 
it,  she  and  the  children  may  suffer.  Thus  custom  sus- 
tains in  England,  and  perhaps  will  long  sustain,  a  system 
resembling  that  of  the  Roman  Dos.  Yet  the  number 
of  persons  possessing  some  property  who  marry  with- 
out a  settlement  increases,  as  does  the  number  of  women 
whose  strength  of  will  and  knowledge  of  business  en- 
ables them  to  hold  their  own  against  marital  coaxing  or 
coercion. 


.t.\/>  DIVORCE  ssa 

It  need  hardly  be  said  that  the  personal  liberty  of  the 
wife  was  established  long  before  her  right  to  separate 
property.  Says  Blackstone  (writing  in  1763): — 

'  The  husband  by  the  old  law  might  give  his  wife  moderate 
correction.  For  as  he  is  to  answer  for  her  misbehaviour,  the 
law  thought  it  reasonable  to  entrust  him  with  his  power  of  re- 
straining her,  by  domestic  chastisement,  in  the  same  moderation 
that  a  man  is  allowed  to  correct  his  apprentices  or  children,  for 
whom  the  parent  is  also  liable  in  some  cases  to  answer.  But 
this  power  of  correction  was  confined  within  reasonable  bounds, 
and  the  husband  was  prohibited  from  using  any  violence  to  his 
wife  aliter  quant  ad  virum,  ex  causa  regiminis  et  castigationis 
uxoris  suae,  licite  et  rationabilitcr  pertinet.  But  in  the  politer 
reign  of  Charles  the  Second  this  power  of  correction  began  to 
be  doubted,  and  a  wife  may  now  have  security  of  the  peace 
against  her  husband,  or,  in  return,  a  husband  against  his  wife. 
Yet  the  lower  rank  of  people,  who  were  always  fond  of  the  old 
common  law,  still  claim  and  exert  their  ancient  privilege  ;  and 
the  Courts  of  Law  will  still  permit  a  husband  to  restrain  a  wife 
of  her  liberty  in  case  of  any  gross  misbehaviour  V 

This  touching  attachment  to  their  old  common  law 
still  survives  among  '  the  lower  rank  of  people  '  in  the 
form  of  wife  beating.  But  among  the  politer  classes 
the  right  to  restrain  a  consort's  liberty  (except  under 
very  special  circumstances)  may  be  deemed  to  have 
become  exploded  since  the  case  of  Reg.  v.  Jackson  in 
1891  2.  So  that  now  the  English  wife,  like  the  Roman, 
may  quit  her  husband's  house  when  she  pleases,  and 
the  suit  for  restitution  of  conjugal  rights,  whereby  either 
could  compel  the  other  to  live  in  the  common  house- 
hold, is  falling  into  disuse,  if  indeed  it  can  still  be  de- 
scribed as  in  any  sense  effective  since  the  Act,  passed 
in  1884,  which  took  away  the  remedy  by  attachment. 

1  Blackstone,  Commentaries,  vol.  i.  bk.  i.  chap.  15. 

2  i  Q.  B.  p.  671  (in  the  Court  of  Appeal).    The  judgements  are  instructive.  The 
Master  of  the  Rolls  goes  so  far  as  to  doubt  whether  the  husband  ever  had  a  legal 
power  of  correction,  a  curious  instance  of  the  way  in  which  the  sentiment  of  a  later 
time  sometimes  tries  to  force  upon  the  language  of  an  older  time  a  non-natural 
meaning,  the  new  sentiment  being  one  which  the  older  time  would  have  failed  to 
understand.     It  would  have  been  simpler  to  admit  that  what  may  well  have  been 
law  in  the  seventeenth  century  is  not  to  betaken  to  be  law  now,  manners  and  ideas 
having  so  completely  changed  as  to  render  the  old  rules  obsolete. 


824  MARRIAGE  AND  DIVORCE 

The  interest  which  belongs  to  these  changes  in  the 
law,  changes  generally  similar  in  their  result  in  the  Eng- 
lish and  in  the  Roman  systems,  though  far  more  gradu- 
ally made  in  the  former  than  in  the  latter,  is  the  interest 
of  observing  the  methods  whereby  custom  and  legisla- 
tion have  sought  to  work  out  different  possible  theories 
of  the  marriage  relation.  There  are  usually  said  to  be 
two  theories,  that  of  Mastery,  and  that  of  Equality.  On 
the  former  the  husband  is  Iqrd  of  the  wife's  property  as 
well  as  of  her  person.  The  law  puts  her  at  his  mercy, 
trusting  that  affection,  public  opinion,  and  a  regard  for 
domestic  comfort  will  restrain  the  exercise  of  his  rights. 
On  the  other  theory,  each  consort  is  a  law  to  him-  or 
herself,  each  can  dispose  of  his  or  her  property,  time, 
and  local  presence  without  the  assent  of  the  other.  The 
law  allows  this  freedom  in  the  hope  that  affection,  re- 
spect, and  the  opinion  of  society  will  prevent  its  abuse. 
Yet  these  two  theories,  that  with  which  both  Rome  and 
England  began,  that  with  which  both  Rome  and  Eng- 
land have  ended,  do  not  exhaust  the  possibilities  of  the 
relation.  For  there  is  a  third  theory  which,  more  or 
less  consciously  felt  to  be  present,  has  influenced  both 
the  one  and  the  other,  creating  a  sort  of  compromise 
between  them.  It  is  the  theory  of  a  partnership  in  social 
life  and  in  property  similar  to  the  partnership  which 
necessarily  exists  as  regards  the  children  of  a  marriage. 
This  idea  is  expressed  by  the  form  which  the  Mastery 
theory  took  when  it  declared  husband  and  wife  to  be 
*  one  person  in  the  law/  and  in  the  Anglican  marriage 
service  where  the  wife's  promise  to  obey  l  is  met  by  the 
husband's  declaration  that  he  endows  her  with  all  his 
worldly  goods.  It  also  qualifies  the  theory  of  Equality 
and  Independence  by  the  practice  of  creating  a  settle- 
ment in  England,  and  a  Dos  (and  Donatio  propter  nuptias) 
at  Rome,  in  which  each  of  the  married  pair  has  an 
interest. 

1  This  promise  does  not  appear  in  the  forms  of  marriage  service  commonly  used 
by  the  unestablished  churches  of  England,  or  most  of  them. 


MAKKI  \<,r.     \\l>    I)I\OK<  I  825 

Any  one  can  see  that  the  Mastery  theory,  against 
which  modern  sentiment  revolts,  was  more  defensible  in 
a  time  of  violence,  when  protection  for  life  and  property 
had  to  be  secured  by  physical  force  as  well  as  by  re- 
course to  the  law,  than  it  is  to-day.  Any  one  can  also 
see  that  there  are  even  to-day  households  for  which 
the  Mastery  theory  may  be  well  suited,  as  there  also 
are,  and  always  have  been,  even  in  days  of  rudeness  and 
in  Musulman  countries,  other  households  where  the  wife 
was,  and  rightly  was,  the  real  head  of  the  family.  Those 
moreover  who,  judging  of  other  times  by  their  own, 
think  that  the  position  of  the  wife  and  of  women  gene- 
rally must  have  been,  under  the  Mastery  theory,  an 
intolerable  one,  need  to  be  reminded  not  only  that  the 
practical  working  of  family  life  depends  very  largely 
on  the  respective  characters  of  the  persons  within  the 
family,  and  on  the  amount  of  affection  they  entertain  for 
one  another,  but  also  that  it  is  profoundly  modified  by 
the  conception  of  their  relations  which  rules  the  minds 
of  these  persons.  Law,  itself  the  product  and  the  index 
of  public  opinion,  moulds  and  solidifies  that  conception, 
and  the  wife  of  the  old  stern  days  of  marital  tyranny 
saw  no  indignity  or  hardship  in  that  position  of  humble 
obedience  which  the  independent  spirit  of  our  own  time 
resents. 

XV.   DIVORCE  UNDER  THE  CANON  LAW. 

There  is  one  more  point  in  which  opposite  theories 
of  marriage  have  to  be  contrasted,  and  in  which  the 
contrast  appears  most  strikingly.  This  is  the  point 
which  touches  the  permanence  of  the  relation. 

We  have  already  seen  what  were  the  provisions  of 
the  Roman  law  upon  the  subject  of  Divorce.  Those 
provisions  continued  to  prevail  in  Western  Europe  after 
the  fall  of  the  Empire,  until,  apparently  in  the  eighth, 
ninth,  and  tenth  centuries,  new  rules  enforced  by  the 
Church  superseded  them  in  the  regions  where  the  im- 


826  MARRIAGE   AND   DIVORCE 

perial  law  had  been  observed.  A  similar  change  oc- 
curred later  in  other  countries  such  as  England  and 
Germany,  where  the  ancient  customs  of  the  barbarian 
tribes  had  allowed  the  husband,  and  apparently  in  some 
cases  the  wife  also,  to  dissolve  the  marriage  and  depart. 
From  the  twelfth  century  onwards  the  ecclesiastical 
rules  and  courts  had  undoubted  control  of  this  branch 
of  law  all  over  Christian  Europe.  Now  the  Church 
held  marriage  to  be  a  sacrament  and  to  be  indissoluble. 
Divorce,  therefore,  in  the  proper  sense  of  the  term,  as 
a  complete  severance  of  a  duly  constituted  matrimonial 
tie,  was  held  by  the  Church  inadmissible.  This  view 
was  based  on  the  teaching  of  our  Lord  as  given  in  the 
Gospels1,  and  was  enforced  on  every  bridal  pair  in  the 
liturgical  form  employed  at  marriage,  as  indeed  it  is  in 
the  English  liturgy  to-day.  Nevertheless,  the  Church 
recognized  two  legal  processes  which  were  popularly, 
though  incorrectly,  called  divorces. 

One  of  these,  called  the  divorce  from  the  bond  of 
marriage  (a  vinculo  matrimonii),  was  in  reality  a  declara- 
tion by  ecclesiastical  authority — that  of  the  Pope,  or  a 
deputy  acting  under  him — that  the  marriage  had  been 
null  from  the  beginning  on  the  ground  of  some  canonical 
impediment,  such  as  relationship  or  pre-contract.  As 
already  observed,  the  rules  regarding  impediments  were 
so  numerous  and  so  intricate  that  it  was  easy,  given 
a  sufficient  motive,  whether  political  or  pecuniary,  to 
discover  some  ground  for  declaring  almost  any  marriage 
invalid.  The  practice  of  granting  divorces  of  this  class, 
which  was  constantly  made  a  means  of  obliging  the 
great  ones  of  the  earth  and  augmenting  papal  revenues, 
may  sometimes  have  been  really  useful  for  the  purpose 
of  dissolving  the  ill-assorted  unions  of  those  who  could 
secure  a  decree  from  the  ecclesiastical  authorities. 
Technically,  however,  it  was  not  a  dissolution  of  mar- 
riage, but  a  declaration  that  no  marriage  had  ever 

1  Messrs.  Pollock  and  Maitland  refer  to  the  dooms  of  Aethelbert  as  showing  the 
permissibility  of  divorce  in  early  English  law  (History  of  English  Law,  vol.  ii. 
P.  39o). 


M  \  If  If  I  !(//<:    AM)    DIYORi'E  827 

existed,  and  therefore  it  rendered  children  born  in  the 
relation  illegitimate1. 

The  other  kind  of  divorce  was  that  called  *  from  board 
and  bed  '  (a  mcnsa  ct  thoro).  It  was  a  regular  part  of  the 
jurisdiction  of  the  Church  Courts,  and  effected  a  legal 
separation  of  the  two  parties  from  their  joint  life  in  one 
household,  while  leaving  them  still  man  and  wife,  and 
therefore  unable  to  marry  any  other  person.  The  status 
of  the  children  was  of  course  not  affected. 

XVI.    THE  LATER  LAW  OF  DIVORCE  IN  ENGLAND 
AND  SCOTLAND. 

This  law  prevailed  over  all  Europe  till  the  Reforma- 
tion, and  continued  to  prevail  in  all  Roman  Catholic 
countries  till  a  very  recent  time.  In  some  it  still  pre- 
vails, at  least  so  far  as  Roman  Catholics  are  concerned. 
But  in  most  Protestant  countries  it  received  a  fatal 
shock  from  the  denial,  in  which  all  Protestants  agreed, 
of  the  sacramental  character  of  marriage,  and  from  the 
revival,  in  some  of  such  countries,  of  the  view  of  mar- 
riage as  a  purely  civil  contract.  Thus  in  Scotland  the 
courts  began,  very  soon  after  the  Roman  connexion 
had  been  repudiated,  to  grant  divorces;  and  in  A.D.  1573 
a  statute  added  desertion  to  adultery  as  a  ground  for 
divorce.  In  England,  however,  where  the  revulsion 
against  the  doctrines  of  mediaeval  Christianity  was  less 
pronounced,  and  where  the  Ecclesiastical  Courts  re- 
tained their  jurisdiction  in  matrimonial  causes,  the  old 
law  went  on  unchanged,  save  that  after  the  abolition  of 
many  of  the  canonical  impediments,  mentioned  above, 
divorces  a  vinculo,  declaring  marriages  to  have  been 
originally  invalid,  became  far  more  rare.  Nevertheless, 
attempts  had  been  made  by  some  of  the  more  energetic 
English  Reformers  to  assert  the  dissolubility  of  mar- 
riage. A  draft  ecclesiastical  code  (called  the  Reformatio 

1  But  canonical  ingenuity  discovered  methods  by  which  in  some  cases  the  legiti- 
macy of  the  children  might  be  saved  though  the  marriage  was  declared  void. 


828  MARRIAGE  AND  DIVORCE 

legum  ecclesiasticarum)  was  prepared,  but  never  enacted; 
and  Milton  argued  strongly  on  the  same  side  in  his 
well-known  but  little  read  book.  About  his  time  cases 
begin  to  occur  in  which  marriages  were  dissolved  by 
Acts  of  Parliament;  a  practice  which  became  more  fre- 
quent under  the  Whig  regime  of  the  early  Hanoverian 
kings,  and  ultimately  ripened  into  a  regular  procedure 
by  which  those  who  could  afford  the  expense  might 
secure  divorces.  The  party  seeking  divorce  was  re- 
quired to  first  obtain  from  the  Ecclesiastical  Court  a 
divorce  a  mensa  et  thoro,  which  obtained,  he  introduced 
his  private  Bill  for  a  complete  divorce.  It  was  heard 
by  the  House  of  Lords  as  a  practically  judicial  matter, 
in  which  evidence  was  given,  and  counsel  argued  the 
case  for  and  (if  the  other  party  resisted)  against  the 
divorce.  It  was  usually  by  the  husband  that  these  di- 
vorce Bills  were  promoted,  and  indeed  no  wife  so  ob- 
tained a  divorce  till  A.D.  1801  *. 

This  characteristically  English  evasion  of  that  princi- 
ple of  indissolubility  for  which  such  immense  respect  was 
professed  lasted  till  1857,  long  before  which  time  the 
existence  of  a  law  which  gave  to  the  rich  what  it  refused 
to  the  poor  had  become  a  scandal  2.  In  that  year  an  Act 
was  passed,  not  without  strenuous  opposition  from  those 
who  clung  to  the  older  ecclesiastical  theory,  which  estab- 
lished a  new  Court  for  Divorce  and  Matrimonial  causes, 
empowered  to  grant  either  a  complete  dissolution  of 
marriage  (divorce  a  vinculo  matrimonii)  or  a  '  judicial 
separation  '  (divorce  a  mensa  et  thoro).  This  statute  ad- 
hered to  the  rule  which  the  practice  of  the  House  of 
Lords  had  established,  and  under  it  a  husband  may 


1  There  had  also  sprung  up  the  practice  of  effecting  private  separations  between 
a  husband  and  a  wife  by  means  of  a  deed  executed  by  each  of  them,  and  such  a 
deed  presently  came  to  be  recognized  as  a  defence  to  a  suit  by  either  party  for  the 
restitution  of  conjugal  rights. 

a  Probably  the  English  Jews  were  permitted  to  exercise  in  the  seventeenth  and 
eighteenth  centuries  the  right  of  divorce  which  their  own  law  gave  them.  But  in 
those  days  the  Jews  were  so  cut  off  from  the  general  English  society  that  the  phe- 
nomenon passed  almost  unnoticed.  They  were  a  very  small  community,  living 
practically  under  their  personal  law,  as  the  Parsis  do  in  Western  India  to-day. 


MARRIAGE  AND  DIVORCE  829 

obtain  a  divorce  on  proof  of  the  wife's  infidelity,  whereas 
the  wife  can  obtain  it  only  by  proving,  in  addition  to 
the  fact  of  infidelity  on  the  husband's  part,  either  that 
it  was  aggravated  by  bigamy  or  incest,  or  that  it  was 
accompanied  by  cruelty  or  by  two  years'  desertion.  To 
prevent  collusion  a  public  functionary  called  the  Queen's 
Proctor  is  permitted  to  intervene  where  he  sees  grounds 
for  doing  so.  Misconduct  by  the  husband  operates  as 
a  bar  to  his  obtaining  a  divorce.  Thus  the  law  of  Eng- 
land stands  to-day.  Attempts  have  been  made  to  alter  it 
on  the  basis  of  equality,  so  that  whatever  misconduct  on 
the  wife's  part  entitles  a  husband  to  divorce  shall,  if 
committed  by  the  husband,  entitle  her  likewise  to  have 
the  marriage  dissolved.  But  these  attempts  have  not 
so  far  succeeded  *. 

The  law  of  Scotland  is  more  indulgent,  and  not  only 
permits  a  wife  to  obtain  divorce  for  a  husband's  in- 
fidelity alone,  but  also  recognizes  wilful  desertion  for 
four  years  as  a  ground  for  divorce.  In  other  respects 
its  provisions  are  generally  similar  to  those  of  the  Eng- 
lish law.  Ireland,  however,  remains  under  the  old  pre- 
Reformation  system.  There  is  no  Divorce  Court,  and 
no  marriage  can  be  dissolved  save  by  Act  of  Parlia- 
ment. The  bulk  of  the  people  are  Roman  Catholics, 
and  among  Protestants  as  well  as  Roman  Catholics  the 
level  of  public  sentiment  and  of  conjugal  morality  has 
apparently  been  higher  than  in  England,  nor  have  at- 
tempts been  made,  at  any  rate  in  recent  years,  to  obtain 
the  freedom  which  England  and  Scotland  possess.  The 
United  Kingdom  thus  shows  within  its  narrow  limits 
the  curious  phenomenon  of  three  dissimilar  systems 
of  law  regulating  a  matter  on  which  it  is  eminently  de- 
sirable that  the  law  should  be  uniform.  England  has  a 
comparatively  strict  rule,  and  one  which  is  unequal  as 
between  the  two  parties.  Scotland  is  somewhat  laxer, 

1  The  Act  of  1857  (amended  in  some  points  by  subsequent  statutes)  contains  pro- 
visions intended  to  prevent  collusion  between  the  parties,  and  empowers  the  Court 
to  regulate  the  property  rights  of  the  divorced  persons  and  the  custody  of  the  chil- 
dren (if  any)  of  the  marriage. 


880  MARRIAGE   AM)   DIVOIfCR 

but  treats  both  parties  alike.  Ireland  has  no  divorce 
at  all.  So  little  do  theoretical  considerations  prevail 
against  the  attachment  of  a  nation  to  its  own  sentiments 
and  usages. 

I  reserve  comments  on  these  systems  till  we  have  fol- 
lowed out  the  history  of  the  English  matrimonial  law 
in  the  widest  and  most  remarkable  field  of  its  develop- 
ment, the  United  States  of  America. 

XVII.    THE  DIVORCE  LAWS  OF  THE  UNITED  STATES. 

When  the  thirteen  Colonies  proclaimed  their  separa- 
tion from  Great  Britain  in  1776,  they  started  with  the 
Common  Law  and  all  such  statute  law  as  had  in  fact 
been  in  force  at  the  date  of  the  separation.  Accord- 
ingly they  had  no  provision  for  dissolving  marriages, 
nor  any  Ecclesiastical  Courts  to  grant  dissolutions,  see- 
ing that  such  tribunals  had  never  existed  in  America, 
where  there  had  been  no  bishops.  Presently,  however, 
they  began  to  legislate  on  the  subject,  and  the  legisla- 
tion which  they,  and  the  newer  States  added  to  the 
Union  since  1789,  have  produced  presents  the  largest 
and  the  strangest,  and  perhaps  the  saddest,  body  of 
legislative  experiments  in  the  sphere  of  family  law 
which  free,  self-governing  communities  have  ever  tried. 
Both  marriage  and  divorce  belong,  under  the  Ameri- 
can Constitution,  to  the  several  States,  Congress  hav- 
ing no  right  to  pass  any  laws  upon  the  subject,  except 
of  course  for  the  District  of  Columbia  and  the  Terri- 
tories. Thus  every  one  of  the  (now)  forty-five  States 
has  been  free  to  deal  with  this  incomparably  difficult  and 
delicate  matter  at  its  own  sweet  will,  and  the  variety  of 
provisions  is  endless.  As  it  would  require  a  great  deal 
of  space  to  present  these  in  detail,  I  shall  touch  on  only 
some  salient  points. 

Originally,  the  few  divorces  that  were  granted  were 
obtained,  following  the  example  of  England,  by  means 
of  Acts  of  the  State  legislature.  The  evils  of  this  plan 


A\n    IHVUlfrK  831 

were  perceived,  and  now  nearly  all  the  States  have  by 
their  Constitutions  forbidden  the  legislature  to  pass  such 
Acts,  since  Courts  have  been  provided  to  which  applica- 
tion may  be  made.  These  are  usually  either  the  ordi- 
nary inferior  Courts  of  the  State,  or  the  Chancery  Courts 
(where  such  survive).  No  State  seems  to  have,  like 
England,  erected  a  special  Court  for  the  purpose.  One 
State  only,  South  Carolina,  does  not  recognize  divorce 
at  all.  In  1872,  under  the  so-called  '  carpet-bagger  gov- 
ernment/ set  up  after  the  War  of  Secession,  a  statute 
was  passed  in  that  State  authorizing  divorces  for  infi- 
delity or  desertion,  but  in  1878,  when  the  native  whites 
had  regained  control,  this  statute  was  repealed,  so  that 
now,  if  a  divorce  is  obtained  at  all,  it  must  be  obtained 
from  the  legislature  outside  the  regular  law.  South 
Carolina  has  the  distinction  of  being  to-day  probably 
the  only  Protestant  community  in  the  world  which  con- 
tinues to  hold  marriage  indissoluble.  No  State  has 
fewer  Roman  Catholic  citizens:  Presbyterians  and  Me- 
thodists are  the  strongest  religious  bodies. 

The  causes  for  which  divorce  may  be  granted  range 
downwards  from  the  strictness  of  such  a  conservative 
State  as  New  York,  where  conjugal  infidelity  is  the  sole 
cause  recognized  for  an  absolute  dissolution  of  the  mar- 
riage, to  the  laxity  of  Washington,  where  the  Court 
may  grant  divorce  '  for  any  cause  deemed  by  it  suffi- 
cient, and  when  it  shall  be  satisfied  that  the  parties  can 
no  longer  live  together.'  Desertion  is  in  nearly  all 
States  recognized  as  a  ground  for  dissolution.  So  is 
cruelty  by  either  party,  or  the  reasonable  apprehension 
of  it  by  either.  So  in  many  States  the  neglect  of  the 
husband  to  provide  for  the  wife,  habitual  intemperance, 
indignities  or  insulting  treatment,  violent  temper,  and 
(in  a  smaller  number)  the  persistent  neglect  of  her  do- 
mestic duties  by  the  wife,  grave  misconduct  before 
marriage  unknown  to  the  other  party,  insanity,  an  indict- 
ment for  felony  followed  by  flight,  vagrancy,  are,  or 
have  been,  prescribed  as  among  the  sufficient  grounds 


832  MARRIAGE  AND  DIVORCE 

for  divorce.  In  some  States  a  sentence  of  imprison- 
ment for  life  ipso  iure  annuls  the  marriage  of  the  prisoner, 
permitting  the  other  partner  to  remarry,  and,  in  most, 
conviction  for  felony  or  infamous  crime  is  a  ground  on 
which  the  Court  may  decree,  and  presumably  will  de- 
cree, the  extinction  of  the  marriage.  Moreover,  there 
are  still  a  few  States  where  over  and  above  the  judicial 
process  open  to  a  discontented  consort,  the  State  legis- 
lature continues  to  grant  divorces  by  special  statutes. 
Delaware  is,  or  very  recently  was,  such  a  State;  and 
in  the  twenty  years  preceding  1887  it  would  seem  that 
four-fifths  of  its  divorces,  not  indeed  very  numerous 
(289  for  twenty  years),  were  so  obtained.  The  laws  of 
most  States  also  provide  for  what  the  Americans  call 
a  '  limited  divorce/  and  the  English  a  '  judicial  separa- 
tion/ equivalent  to  the  old  divorce  a  mensa  et  thoro.  It 
leaves  the  marriage  still  valid,  but  relieves  the  parties 
from  any  obligation  to  live  together;  and  in  some  States 
the  Court  in  pronouncing  a  decree  of  divorce  may 
change  the  name  of  the  wife  (in  Texas  and  Arizona  the 
name  of  either  party),  while  in  Vermont  it  may  also 
change  the  names  of  the  children  who  are  minors. 

Not  less  remarkable  than  the  multiplication  of  grounds 
for  divorce  in  the  American  States  is  the  extreme  laxity 
of  procedure  which  has  grown  up.  The  Courts  having 
jurisdiction  are  usually  the  Courts  of  the  county,  tri- 
bunals of  no  great  weight,  whose  ill-paid  judges  are 
seldom  men  of  professional  eminence.  The  terms  of 
residence  within  a  State  which  are  required  before  a 
petitioner  can  apply  for  a  divorce  are  generally  very 
short.  The  provisions  for  serving  notice  on  the  re- 
spondent or  defendant  to  the  divorce  suit  are  loose 
and  seem  to  be  carelessly  enforced.  Some  States  allow 
service  to  be  effected  by  publication  in  the  newspapers, 
if  the  other  party  be  not  found  within  the  State,  and  this 
of  course  often  happens  when  the  applicant  has  recently 
come  to  the  State,  most  likely  a  distant  one,  from  that 
in  which  he  or  she  lived  with  the  other  consort  Fre- 


.\M> 

quently  he  comes  for  the  express  purpose  of  getting  his 
marriage  dissolved.  Although  most  States  declare  col- 
lusion or  connivance  by  the  other  party  to  be  a  bar  to 
the  granting  of  a  divorce,  and  some  few  States  provide 
that  a  public  official  shall  appear  to  defend  in  unde- 
fended petitions,  the  provisions  made  for  detecting  these 
devices  are  inadequate;  and  in  not  a  few  cases  the  pro- 
ceedings do  little  more  than  set  a  judicial  seal  upon 
that  voluntary  dissolution  by  the  agreement  of  the  two 
consorts,  which  was  so  common  at  Rome.  It  is  doubt- 
less a  point  of  difference  between  the  Roman  law  and 
that  of  modern  American  States  that  in  the  former  the 
parties  could  by  their  own  will  and  act  terminate  the 
marriage :  in  the  latter  the  Courts  must  be  invoked  to  do 
so.  But  where  the  Courts  out  of  good-nature  or  care- 
lessness made  a  practice  of  complying  with  the  applica- 
tion of  one  party,  unresisted  or  feebly  resisted  by  the 
other,  this  difference  almost  disappears.  The  facilities 
which  some  of  the  more  lax  States  hold  out  to  those 
who  come  to  live  in  them  for  the  requisite  period,  and 
who  then  procure  from  the  complaisant  Court  a  divorce 
without  the  knowledge  of  the  other  consort,  constitute 
a  grave  blot  on  the  administration  of  justice  in  the 
Union  generally,  for  a  marriage  dissolved  in  one  State 
(where  jurisdiction  over  the  parties  has  been  duly 
created)  is  prima  facie  dissolved  everywhere  l ;  and  al- 
though the  decree  might  conceivably  be  reversed  if  evi- 
dence could  be  given  that  it  had  been  improperly 
obtained,  it  is  usually  so  difficult  to  obtain  that  evi- 
dence that  the  injured  party,  especially  an  injured  wife, 
must  perforce  submit. 

1  In  two  or  three  States  the  law  provides  that  when  an  inhabitant  goes  into  some 
other  State  for  the  purpose  of  getting  a  divorce  for  a  cause  arising  within  the  State, 
or  for  a  cause  which  the  law  of  the  State  would  not  authorize,  a  divorce  granted 
to  him  shall  have  no  effect  within  the  State. 

53 


834  MARRIAGE  AND  DIVORCE 

XVIII.    STATISTICS  OF  DIVORCE  IN  AMERICA. 

Under  these  lax  laws,  and  the  not  less  lax  administra- 
tion of  them,  the  number  of  divorces  has  in  the  United 
States  risen  with  formidable  rapidity.  In  1867  there 
were  9,937  granted,  in  1886,  25,535,  an  increase  of  nearly 
157  per  cent,  in  twenty  years.  The  total  number  re- 
corded to  have  been  granted  in  those  twenty  years  (and 
the  record  is  probably  not  quite  complete)  is  328,716, 
a  ghastly  total,  exceeding  all  the  divorces  granted  in 
the  same  years  in  all  other  Christian  countries1.  The 
population  of  the  Republic  increased  about  60  per  cent, 
within  the  same  twenty  years.  Taking  the  two  census 
years  1870  and  1880,  the  percentage  of  increase  was,  for 
the  population,  30.1,  for  divorce,  79.4,  or  more  than 
twice  as  great;  and  while  in  many  States  the  percentage 
of  divorce  increase  is  far  larger  than  79.4,  there  are 
only  five  in  which  divorce  has  not  grown  faster  than 
population. 

The  increase  is  most  rapid  in  the  south-western  States, 
in  several  New  England  States,  and  especially  in  the 
States  of  the  far  West,  less  marked  in  the  north  Atlantic 
States  generally,  and  in  those  between  the  Atlantic  and 
the  Mississippi.  It  is  greater  in  cities  than  in  rural 
districts  2. 

It  is,  in  the  South,  apparently  somewhat  greater 
among  the  coloured  people  than  among  the  whites 3. 
It  is  greater  among  native-born  Americans  than  among 
immigrants  from  Europe.  And  it  need  hardly  be  said 

1  In  Canada  during  the  same  twenty  years  only  135  divorces  were  granted  in  a 
population  which  was,  in  1881,  4,324,00x3.     In  some  provinces  of  the  Dominion  di- 
vorces could  be  obtained  only  by  private  Act  of  Parliament. 

2  In  an  interesting  article  in  the  Political  Science  Quarterly  for  March,  1893,  Mr 
W.  F.  Willcox  (now  (1900)  of  the  U.  S.  Census  Office)  argues  that  the  divorce  rate 
is  influenced  by  depression  of  trade,  declining  when  the  lower  middle  and  working 
class,  among  whom  it  is  frequent,  are  less  able  to  afford  it. 

Mr.  Willcox  quotes  some  remarkable  figures  from  Japan  showing  an  extremely 
high  divorce  rate  there.  In  1886  there  were  in  Japan  315,311  marriages  and  117.- 
964  divorces.  This  is  four  and  a-half  times  the  rate  in  the  U.  S.  of  America,  which 
comes  next. 

3  The  conditions  prevailing  among  a  coloured  population  which  had,  under  sla- 
very, no  legal  marriage,  go  far  to  explain  this  phenomenon. 


u,/-;    i.\/>  ni\'ok<-n  835 

that  it  is  far  larger  among  Protestants  than  among 
Roman  Catholics.  These  points  deserve  to  be  remem- 
bered, because  they  throw  some  light  on  the  causes 
which  have  produced  the  increase. 

Some  other  facts  to  be  noted  before  we  pass  on  to 
consider  those  causes  are  the  following. 

The  grounds  on  which  divorces  have  been  granted 
are  often  trivial,  even  frivolous.  I  select  a  few  from  a 
long  list  given  in  the  American  Official  Report  dealing 
with  the  subject 1. 

A  wife  alleges  that  her  husband  has  accused  her  sister 
of  stealing,  thereby  sorely  wounding  her  feelings. 

Another  says, '  During  our  whole  married  life  my  hus- 
band has  never  offered  to  take  me  out  riding  (  =  driv- 
ing). This  has  been  a  source  of  great  mental  suffering 
and  injury/ 

Another  complains  that  her  husband  does  not  wash 
himself,  '  thereby  inflicting  on  plaintiff  great  mental 
anguish.' 

Another  says  that  her  husband  '  quotes  verses  from 
the  New  Testament  about  wives  obeying  their  husbands. 
He  has  even  threatened  to  mash  the  plaintiff,  and  has 
drawn  back  his  hand  to  do  it/  The  decree  which 
awarded  a  divorce  to  this  wife  contains  the  following: 
1  I  find  that  when  plaintiff  was  sick  and  unable  to  work 
defendant  told  her  the  Lord  commanded  her  to  work, 
and  that  he  was  in  the  habit  of  frequently  quoting  Scrip- 
tural passages  in  order  to  show  her  she  was  to  be  obe- 
dient to  her  husband/ 

A  wife  alleges  that  her  husband  does  not  come  home 
till  ten  o'clock  at  night,  and  when  he  does  return  he 
keeps  plaintiff  awake  talking.  He  also  keeps  a  saloon, 
which  sorely  grieves  mind  of  plaintiff.  He  replies,  say- 

1  This  Report,  published  in  1889  by  the  United  States  Labour  Bureau  at  Wash- 
ington, contains  many  instructive  data.  The  Annual  Reports  of  the  voluntary 
Association,  called  the  League  for  the  Protection  of  the  Family,  also  deserve  to  be 
consulted.  Its  corresponding  secretary  is  the  Rev.  Dr.  S.  W.  Dike  of  Auburndale, 
Mass.,  who  has  written  a  number  of  thoughtful  articles  upon  the  subject,  and  to 
whom  I  am  much  indebted  for  documents  supplied  to  me  and  for  the  expression  of 
his  own  views. 


836  MARRIAGE  AND   DIVORCE 

ing,  '  Plaintiff  should  not  be  ashamed  of  him  because 
temporarily  in  the  liquor  business :  that  he  may  do  bet- 
ter some  day:  his  father  was  a  high  State  Officer  in 
Germany.'  This  wife  gets  a  divorce  on  the  ground  of 
'  mental  cruelty.' 

In  all  these  cases,  and  in  many  others  enumerated  in 
the  Report  where  the  grounds  are  equally  slight,  the 
divorce  is  granted.  And  similar  cases  are  given  in  which 
the  husband  obtains  divorce  on  the  ground  of  the  wife's 
cruelty. 

'  Mental  cruelty  '  is  of  course  a  term  hard  to  define, 
as  may  be  seen  by  examining  the  views  that  have  been 
expressed  by  English  judges  on  cruelty,  and  it  is  not 
wonderful  that  the  easy-going  courts  of  most  American 
States  should  give  a  wide  extension  to  such  an  elastic 
conception. 

Of  the  causes  recorded  as  those  for  which  marriages 
are  dissolved,  the  most  frequent  are  Desertion,  which 
represents  38.5  of  the  whole  number  of  divorces;  then 
Infidelity;  then  Cruelty;  then  Intoxication.  Of  the  total 
number  of  divorces  granted  during  the  twenty  years 
1867-1886,  65.8  per  cent.,  very  nearly  two-thirds,  were 
granted  to  wives  and  34.2  per  cent,  to  husbands.  Of 
the  total  number  granted  for  infidelity  56.4  per  cent. 
were  granted  to  husbands  and  43.6  to  wives.  But  in 
the  other  chief  causes  wives  are  more  frequently  the 
successful  applicants.  In  cruelty  they  obtain  seven 
times  as  many  decrees;  in  desertion  one  and  a-half  times 
as  many;  in  intoxication  eight  times  as  many.  The  Re- 
port, however,  shows  that  intemperance  is  either  directly 
or  indirectly  responsible  for  a  larger  proportion  of  the 
total  cases  than  its  place  in  the  table  represents. 

I  take  from  a  valuable  paper  by  an  Ohio  lawyer  (Mr. 
Newton  D.  Baker) 1  some  facts  which  illustrate  the  state 
of  things  in  one  of  the  so-called  '  Western  Reserve  ' 
counties  in  that  great  State.  In  Cuyahoga  county  the 
total  yearly  number  of  marriages  is  about  3,400,  and  the 

»  Western  Reserve  Law  Journalior  October,  1899. 


MARRIAGE  AND   DIVOWK  887 

number  of  divorce  suits  annually  brought  is  about  500. 
In  the  year  1898-1899,  the  whole  number  of  divorce 
suits  brought  in  the  Court  of  Common  Pleas  was  562 
out  of  a  total  number  of  3,848  suits  for  all  causes,  i.e. 
about  12  per  cent.  In  the  State  of  Ohio  the  annual 
number  of  marriages  is  from  33,000  to  40,000;  the  total 
number  of  divorce  suits  brought  from  3,700  to  4,200; 
and  the  total  number  of  divorces  granted  annually  about 
3,000  in  a  population  of  about  4,000,000.  Mr.  Baker 
observes  that '  five  of  the  causes  on  which  the  law  allows 
divorce,  viz.  wilful  absence  of  either  party  from  the 
other  for  three  years,  extreme  cruelty,  fraudulent  con- 
tract, any  gross  neglect  of  duty,  and  habitual  drunken- 
ness for  three  years,  are  all  so  vague  and  elastic  as  to 
amount  to  unrestricted  license  in  the  matter  of  divorce.' 
Out  of  366  divorces  granted  in  the  year  1898-1899,  wil- 
ful absence  and  gross  neglect  of  duty  accounted  for  150, 
extreme  cruelty  for  109,  habitual  drunkenness  for  88, 
and  infidelity  for  14  only  (five  being  unaccounted  for). 
He  adds,  '  The  personal  temper  and  disposition  of  in- 
dividual judges  (there  are  more  than  eighty  in  the  State 
entrusted  with  power  to  dissolve  marriages)  have  come 
to  be  so  well  recognized  as  the  limits  of  the  jurisdic- 
tion of  the  Common  Pleas  Court  in  granting  divorces, 
that  now  it  is  the  practice  of  many  lawyers  to  continue 
and  delay  the  hearing  of  divorce  causes  until  some  judge, 
known  to  be  lenient  in  this  matter,  rotates  to  the  bench 
of  the  Court  in  which  such  cases  are  set  for  hearing. 
.  .  .  Many  of  the  judges  appear  to  be  oblivious  to  the 
fact  that  one  of  the  most  important  interests  of  so- 
ciety is  at  stake  in  every  divorce  proceeding,  and  either 
out  of  unscientific  ideas  upon  the  subject,  or  out  of 
mere  complaisancy  towards  attorneys  and  litigants, 
they  have  lent  themselves  to  a  looseness  of  practice 
which  is  in  some  degree  responsible  for  the  deplorable 
results/ 

In   the   United   States   applications   for   divorce   are 
mostly  made  after  a  marriage  of  short  duration.     In 


838  MARRIAGE  AND  DIVORCE 

one-half  of  the  cases  divorce  was  granted  within  six 
years  from  the  date  of  marriage.  Oddly  enough,  the 
average  duration  of  a  marriage  terminated  by  divorce 
varies  much  between  State  and  State.  It  is  shortest  in 
the  southern  States,  falling  to  6.48  years  in  Arkansas, 
and  6.91  in  Tennessee,  highest  in  the  north-east,  rising 
to  11.69  m  New  Jersey,  and  12.12  in  Massachusetts. 
This  may  be  partly  due  to  the  fact  that  the  more  con- 
servative States  require  a  longer  period  of  desertion 
to  be  proved.  The  duration  of  marriage  is  somewhat 
longer  in  cases  where  the  wife  applies,  which  may  indi- 
cate either  that  she  is  more  patient  under  her  lot  than 
the  husband,  or  that  her  comparative  ignorance  of  the 
world  makes  her  less  able  to  resort  to  the  Courts.  The 
fact  that  desertion  is  the  cause  most  frequently  assigned 
by  wives  may  also  have  its  effect. 

It  would  be  important  to  know  what  proportion  the 
desire  to  marry  some  one  else  bears  to  the  other  causes 
which  induce  persons  to  seek  to  escape  from  their  exist- 
ing wedlock.  Unfortunately  American  statistics  of  mar- 
riage, which  are  in  many  States  loosely  kept,  do  not 
enable  us  to  answer  this  question1.  Practising  lawyers 
say  that  nothing  is  commoner.  It  would  appear,  how- 
ever, from  some  European 2  figures  that  there  is  in 
reality  no  greater  tendency  for  divorced  men,  and 
scarcely  any  greater  tendency  for  divorced  women,  to 
remarry  within  a  few  years  of  the  dissolution  of  their 
marriage  than  there  is  for  widowers  and  widows  to  do 
so  after  the  death  of  a  consort;  and  it  has  often  been 


1  The  Report  for   1891  of  the  League  for  the  Protection  of  the  Family  says ; 
1  Connecticut  for  two  years  reports  the  number  of  divorced  persons  married  each 
year.     In  1889  there  were  286  such — 135  men  and  151  women,  which  is  a  little  above 
one-third  the  number  divorced  in  the  year.    In  i8go  there  were  477  divorces  granted, 
or  954  individuals  divorced  ;  and  there  were  350  divorced  persons — this  year  207 
women  and  143  men — who  married  again  during  the  year.     An  extended  induction 
along  this  rine  should  be  possible.    Guesses  based  on  mere  observation  are  untrust- 
worthy guides  in  legislation  or  social  reform.' 

2  Thte  point  has  been  worked  out  by  M   Bertillon,  a  well-known  French  statis- 
tician.   I  owe  my  knowledge  of  it  to  an  acute  and  suggestive  paper  (some  of  whose 
conclusions  however  seem  to  me  questionable)  by  Mr.  W.  F.  Willcox,  of  Cornell 
University,  New  York.     '  The  Divorce  Problem    :  New  York,  1891. 


MARRIAGE   AM)   DIVORCE  ^0 

observed  that  persons  who  have  been  most  happily  mar- 
ried are  among  those  most  likely  to  marry  again. 

The  rapid  growth  of  divorce  under  the  hasty  legis- 
lation which  marked  the  first  half  of  the  present  century 
began  about  thirty  years  ago  to  create  some  alarm  in 
the  United  States.  The  subject  was  much  discussed, 
an  association  was  formed  to  grapple  with  the  evil,  and 
in  several  States  laws  were  passed  restricting  a  little 
the  causes  entitling  persons  to  be  divorced1.  In  those 
States  there  has  accordingly  been  some  slight  diminu- 
tion in  the  number  of  divorces  granted,  but  elsewhere 
the  rate  has  gone  on  increasing,  though  apparently  (for 
there  are  no  very  recent  statistics)  a  little  more  slowly 
than  it  was  doing  down  to  1886.  In  some  States  it 
seems,  after  increasing,  to  have  now  reached  a  stable 
average  to  the  population.  This  would  appear  to  be  the 
case  in  Switzerland  also. 

XIX.    DIVORCE  IN  MODERN  EUROPEAN  COUNTRIES. 

It  is  not  only  in  America  that  the  evil  grows.  In  all 
modern  countries  where  divorce  is  permitted,  that  is  to 
say  in  all  Protestant  and  some  Roman  Catholic  States, 
the  same  tendency  is  perceptible.  Among  the  Protes- 
tant nations  the  impulse  of  the  Reformation  caused 
sooner  or  later  a  rejection  of  the  old  canonical  doctrine 
of  indissolubility;  so  we  may  say,  speaking  broadly,  that 
in  Germany,  Switzerland,  Holland,  Denmark,  Sweden 
and  Norway,  a  marriage  may  be  dissolved  not  only  for 
the  infidelity  of  either  party  (since  in  all  these  countries 
husband  and  wife  are  treated  alike),  but  also  for  deser- 
tion and  imprisonment  for  crime.  Some  laws  go  even 
further,  allowing  mutual  consent  to  be  a  cause.  Among 
Roman  Catholic  countries,  France  retained  the  canoni- 
cal rule  till  the  Revolution.  The  legislation  of  1792 

1  Efforts  have  recently  been  made  to  induce  States  to  adopt  identical  legislation 
on  this  among  other  topics  •  and  there  seems  to  be  a  prospect  that  a  certain  num- 
ber will  do  so. 


840  MARRIAGE  AND   DIVORCE 

granted  extreme  freedom,  which  was  so  largely  used  that 
we  are  told  that  in  1797  there  were  more  divorces  than 
marriages.  In  1816  the  principles  of  Catholicism  re- 
gained control,  and  held  it  till  1884,  when  a  law  was 
passed  permitting  marriages  to  be  dissolved  for  the  in- 
fidelity of  either  party,  or  for  the  condemnation  of  either 
to  an  infamous  punishment,  and  authorizing  the  trans- 
mutation into  an  absolute  divorce  of  a  judicial  separa- 
tion which  has  lasted  for  three  years.  The  law  of  Bel- 
gium is  similar,  but  goes  a  little  further  in  allowing 
mutual  consent  to  be  a  ground,  though  one  surrounded 
by  many  restrictions.  Austria  and  Hungary  allow  di- 
vorce (under  rules  similar  to  those  of  Protestant  coun- 
tries, i.e.  on  the  grounds  of  infidelity,  grave  crime, 
desertion,  cruelty,  &c.)  to  non-Catholic  citizens,  while 
Italy,  Portugal,  and  Spain  adhere  to  the  Tridentine  sys- 
tem which  recognizes  only  a  judicial  separation  (a  mensa 
et  thord)  and  not  a  dissolution  of  the  tie.  Russia  still 
leaves  matrimonial  causes  to  the  ecclesiastical  courts, 
but  allows  them  to  dissolve  marriages  on  the  ground  of 
infidelity,  a  heavy  criminal  sentence,  or  disappearance 
of  one  consort  for  five  years1. 

In  nearly  all  these  countries  such  statistics  as  are 
available  show  an  increase  in  the  number  of  divorces 
during  recent  years.  For  instance  in  Belgium,  a  pre- 
dominantly Roman  Catholic  country,  divorces  rose  be- 
tween 1884  and  1893  from  221  to  497.  In  France  the 
suits  for  divorce  rose  from  1773  in  1884  to  7445  in  1891. 
The  number  of  divorces  compared  with  the  number  of 
marriages  almost  doubled  in  those  seven  years.  In  the 
German  Empire  there  were  5342  divorces  granted  in 
1882  and  6178  in  1891.  In  Holland  they  were,  in  1883, 
189,  in  1892,  354.  A  like  period  saw  them  rise  in  Sweden 
from  218  to  316,  in  Norway  from  7  to  82  (!),  in  Greece 
from  251  to  788.  The  rise  is  slighter  in  Austria.  Swit- 
zerland alone,  though  its  law  is  comparatively  lax,  shows 

1  According  to  a  high  Russian  authority,  divorce  was  freely  practised  by  the 
Russian  peasantry  under  their  ancient  customs. 


MARRIAGE  AND  DIVORCE  841 

no  increase1.  In  England  divorces  rose  from  127  in 
1860  to  390  in  1887,  an  increase  much  more  rapid  than 
that  of  population  or  of  marriages  2.  Judicial  separa- 
tions rose  between  the  same  years  from  n  to  50.  In 
Scotland  divorces  which  in  1867  numbered  32  had,  in 
1886,  grown  to  96,  a  still  more  rapid  rise,  as  it  covers 
only  twenty  instead  of  twenty-seven  years.  It  is  worth 
noting  that  in  England  it  is  usually  the  husband  who 
petitions  for  a  divorce,  and  almost  always  the  wife  who 
seeks  a  judicial  separation. 

The  growth  in  so  many  otherwise  dissimilar  countries 
of  this  disposition  to  shake  off  the  marriage  tie  is  a 
remarkable  phenomenon,  which  deserves  more  attention 
than  it  seems  to  have  yet  received  in  England.  Though 
strongest  in  Protestant  countries,  it  is  not  confined  to 
them,  as  appears  from  the  instances  of  Belgium,  Bavaria 
and  Greece.  Though  there  is  no  divorce  a  vinculo  in 
Italy  or  Spain,  the  same  causes  which  make  it  frequent 
elsewhere  may  be  at  work,  though  less  conspicuously, 
in  countries  where  the  State  aids  the  Church  in  check- 
ing their  outward  manifestation.  Divorce  is  an  obtru- 
sive symptom  of  the  disease,  not  the  disease  its-elf. 

What  is  the  disease?  or,  lest  we  should  seem  to  pre- 
judge the  merits  of  the  matter,  what  is  the  source  of 
this  disposition  to  look  upon  the  marriage  tie  with  eyes 
different  from  those  of  a  century  ago,  and  to  yield  more 
easily  to  the  temptation  to  dissolve  it?  The  cause, 
whatever  it  is,  must  lie  deep,  for  it  manifests  itself  under 
many  different  conditions;  and  it  may  possibly  be  not 
any  single  cause,  but  a  combination  of  several  concur- 
rent social  or  moral  changes,  independent  springs  whose 
confluence  swells  the  stream  of  tendency. 

A  similar  phenomenon  happened  once  before  in  his- 
tory. At  Rome  also,  as  we  have  already  seen,  a  very 
strict  theory  of  marriage  and  a  corresponding  strictness 

1  I  take  the  above  figures   from   Parliamentary  Paper    [€-7639]   of  1895.     No 
figures  are  given  for  Russia  or  Denmark. 

2  Parliamentary  Return  of  March  9,  1889. 


842  MARRIAGE  AND  DIVORCE 

in  practice  gave  way  to  great  laxity  of  the  law  and, 
after  a  short  interval,  to  unbounded  licence  in  practice. 
Let  us  see  whether  we  can,  by  examining  the  pheno- 
mena which  brought  about  this  change  in  the  greatest 
of  ancient  States,  hit  upon  any  clue  that  may  serve  to 
explain  the  facts  of  our  own  time. 

XX.    COMPARISON  OF  THE  PROCESS  OF  CHANGE  AT 

ROME    AND    IN    THE    MODERN    WORLD. 

The  Romans  began  with  a  doctrine  of  marriage  which 
had  four  salient  characteristics  J : 

A  formal  legal  act  almost  invariably  accompanying 

marriage. 

A  religious  element  in  the  oldest  form  of  this  act. 
A  subjection  of  the  wife  to  the  husband's  power. 
A  complete  absorption  of  the  wife's  property  rights 

into  the  legal  personality  of  the  husband. 
These   characteristics    all   vanished;   and    under   the 
newer  law  and  custom  of  the  city,  and  ultimately  of  the 
Empire — 

The  act  of  marriage  required  no  formalities,  and 

was  entirely  a  private  affair. 
It  was  also  a  purely  civil,  not  a  religious,  affair. 
The  wife  became  absolutely  independent  of  her  hus- 
band, remaining  (unless  she  had  been  emanci- 
pated) in  the  legal  family  of  her  father. 
The  wife's  property  remained  her  own,  though  it 
was  usual  for  the  consorts  to  have  some  joint 
property. 

Concurrently  with  and  following  on  these  changes 
there  had  come  about  in  Rome  a  general  decline  of 
faith  in  the  old  deities,  a  faith  partially,  but  not  bene- 
ficially, replaced  by  Oriental  superstitions.  There  had 
also  come  habits  of  luxury,  a  thirst  for  material  enjoy- 

1  See  above,  p.  788  sqq.  Although  no  formal  legal  act  and  no  religious  rites 
were  absolutely  required  for  marriage  at  the  time  when  we  first  discover  the  Roman 
Law  as  a  working  system,  the  practice  of  using  either  such  an  act  or  such  rites  was 
all  but  universal. 


MARRIAGE  AND   DlYORt'K  W3 

ment,  a  passion  for  amusements,  a  general  relaxation  of 
the  moral  restraints  which  public  opinion  had  formerly 
imposed.  Marriage  had  begun  to  be  regarded  mainly 
from  the  point  of  view  of  pecuniary  interest  or  social 
advancement.  There  was  comparatively  little  sentiment 
attaching  to  it,  and  not  much  sense  of  duty.  Men  grew 
less  and  less  willing  to  marry;  women  as  well  as  men 
less  and  less  faithful.  Fewer  children  were  born.  As 
neither  religious  nor  moral  associations  sanctified  the 
relation,  and  as  it  could  be  terminated  at  pleasure,  it 
was  lightly  entered  on,  and  this  very  heedlessness,  mak- 
ing it  frequently  a  failure,  caused  it  to  be  no  less  lightly 
dissolved.  Thus  social  habits  and  a  standard  of  opinion 
were  formed,  against  which  the  reforming  efforts  of 
Augustus  and  his  successors  could  do  little,  and  which 
resisted  even  the  far  more  powerful  efforts  of  Christian- 
ity, until  Roman  society  itself  went  to  pieces  in  the 
West,  and  passed  into  new  forms  in  the  East. 

This  decadence  of  the  matrimonial  relation  was  doubt- 
less facilitated  by  three  peculiarities  of  the  law,  viz.  the 
absence  of  all  prescribed  forms  for  marriage  and  divorce, 
which  set  caprice  free  from  legal  restraints  or  delays,  the 
extinction  of  any  necessary  connexion  as  regards  pro- 
perty between  the  two  spouses1,  and  the  fact  that  the 
legal  family  did  not  coincide  with  the  natural  family, 
for  legally  the  wife  remained  in  her  father's  family  and 
did  not  enter  her  husband's.  Nevertheless  the  under- 
lying causes  of  that  decadence  were  social  and  moral 
rather  than  legal  causes. 

In  the  modern  world  the  change  from  the  old  state 
of  things  to  the  new  has  been  slower  and  less  complete. 
Still  it  offers  a  kind  of  parallel  to  the  phenomena  we 
have  been  considering. 

Before  the  Reformation  what  were  the  features  of 
the  marriage  relation  in  Europe? 

It  had  a  strongly  religious  character.     Its  formation 

1  The  Dos  supplied  a  connexion,  but  the  wife's  right  to  claim  it  at  the  end  of  the 
marriage  was  not  greatly  affected  by  her  conduct  (see  pp.  795  and  803  rn^ra). 


844  MARRIAGE  AND  DIVORCE 

was  blessed  by  the  Church.  It  was  deemed  a  Sacra- 
ment. It  was  treated,  for  doctrinal  reasons,  as  indis- 
soluble. There  were,  to  be  sure,  plenty  of  marriages 
essentially  unhallowed,  plenty  of  marriages  contracted 
for  the  most  sordid  reasons,  plenty  of  marriages  with 
little  affection;  and  there  were  also  marriages  tainted 
by  sin.  The  standard  of  conjugal  fidelity  was  in  the 
fifteenth  century  a  low  one.  Nevertheless  the  tie  was 
deemed  to  be  one  which  religion  sanctified,  and  religious 
sentiment  must  have  had  a  restraining  effect  upon  ten- 
der consciences,  and  particularly  upon  the  wife,  women 
being  usually  more  susceptible  to  religious  emotion  than 
men  are. 

It  gave  the  husband,  in  most  countries,  and  notably 
in  England,  an  almost  complete  control  over  the  pro- 
perty rights  of  the  two  spouses,  and  in  this  way  held 
them  together. 

It  gave  the  husband,  and  notably  in  England,  almost 
complete  control  over  the  person  and  conduct  of  the 
wife,  impressing  upon  her  mind  her  dependence  on  him, 
and  her  duty  to  obey  him.  No  doubt  where  the  wife's 
intellect  or  will  was  the  stronger  of  the  two  her  intellect 
guided  or  her  will  prevailed.  Nevertheless  her  normal 
attitude  was  that  of  a  submissive  identification  of  her 
wishes  and  interests  with  his. 

Whether  these  things  made  for  affection,  and  for  hap- 
piness, the  outcome  of  affection,  is  another  question. 
What  we  have  to  remark  is  that  at  any  rate  they  drew 
the  bond  very  tight,  and  formed  a  solid  basis  for  family 
life.  Bride  and  bridegroom  took  one  another  for  richer 
for  poorer,  for  better  for  worse,  in  sickness  and  in 
health,  till  death  should  them  part. 

What  has  been  the  course  of  things  since  the 
Reformation? 

In  Protestant  countries  the  religious  character  of  mar- 
riage has  been  sensibly  weakened.  Although  the  cere- 
mony, in  most  of  such  countries,  and  notably  in  Eng- 
land, still  usually  receives  ecclesiastical  benediction,  the 


MARRIAGE  A\D   DIVOKi'K  845 

tie  is  not  to  men's  or  even  to  women's  minds  primarily 
a  religious  tie.  To  most  Protestants,  the  wedding  ser- 
vice in  church,  or  before  a  minister  of  religion,  is  rather 
an  ornamental  ceremony  than  essentially  a  sacred  vow. 
The  duties  of  the  spouses  are  conceived  of  by  them  in 
a  more  or  less  worthy  way,  according  to  their  respective 
religious  and  moral  standards,  but  not  generally,  or  at 
least  seldom  vividly,  as  a  part  of  their  duties  towards 
God. 

This  is  perhaps  part  of  that  general  decline  in  the 
intensity  of  the  feeling  of  sin  which  marks  the  Protes- 
tantism of  our  own  time  as  compared  with  that  of  earlier 
centuries.  I  do  not  mean  that  people  are  any  more 
sinful  than  they  were — probably  they  are  not.  They 
were  sinful  enough  in  the  seventeenth  century.  But 
wrong-doing  presents  itself  more  frequently  to  all  but 
the  most  pious  minds  rather  as  something  unworthy, 
something  below  their  standard  of  honour,  something 
disapproved  by  public  opinion,  than  as  something  which 
deserves  the  wrath  of  God,  and  affects  their  true  rela- 
tion to  Him  as  their  Father.  Thus  the  element  of  sin  in 
any  breach,  be  it  slight  or  be  it  grave,  of  conjugal  duty, 
would  seem  to  be  less  present  to  the  conscience  of  the 
average  husband  or  wife  now  than  it  was  formerly,  at 
least  if  we  are  to  take  the  literature  (including  the  the- 
ological literature)  of  former  times,  when  set  beside  that 
of  our  own,  to  be  any  guide. 

The  inquiry  how  far  any  similar  change  has  passed 
upon  sentiment  in  Roman  Catholic  peoples  would  lead 
us  far,  nor  am  I  competent  to  pursue  it.  The  conception 
of  sin  itself  is  not  quite  the  same  thing  to  pious  Catholics 
as  it  is,  or  was,  to  pious  Protestants.  But,  broadly  speak- 
ing, marriage  doubtless  retains  to  Roman  Catholics,  and 
to  the  Orthodox  church  of  the  East,  more  of  a  sacred 
character  than  it  does  to  Protestants,  and  the  change  in 
this  respect  from  the  sixteenth  to  the  nineteenth  century 
is  doubtless  greater  among  Protestants. 


846  MARRIAGE  AND  DIVORCE 

XXI.  TENDENCIES   AFFECTING  THE  PERMANENCE  OF 
THE  MARRIAGE  TIE. 

In  most  countries,  and  notably  in  England  and  the 
United  States,  married  women  have  obtained  power  over 
their  own  property,  including  their  earnings,  and  are 
now  less  dependent  upon  their  husbands  for  support 
than  they  were  formerly. 

In  most  countries  married  women  have  far  greater 
personal  independence  than  in  earlier  days.  They  can 
dispose  of  their  lives  as-  they  please,  and  are  permitted 
both  by  law  and  by  usage  an  always  increasing  freedom 
of  going  where  and  doing  what  they  will.  For  social 
purposes,  they  are  in  England  (at  least  those  who  be- 
long to  the  upper  and  middle  classes  are),  and  still  more 
in  the  United  States,  though  somewhat  less  in  such 
countries  as  Germany  and  Sweden,  entirely  the  equals 
of  men,  so  that  the  retention  of  the  promise  to  obey 
in  the  marriage  service  of  the  English  Church  excites 
amusement  by  its  discrepancy  from  the  facts. 

Over  and  above  these  changes  directly  affecting  the 
matrimonial  relation,  there  are  other  changes  which 
have  modified  life  and  thought.  The  old  deference  to 
custom  and  tradition,  and  therewith  the  stability  of  the 
social  structure  as  a  whole,  have  been  weakened.  Men 
move  much  more  from  place  to  place,  so  their  minds 
have  grown  less  settled.  The  habit  of  reading,  and  in 
particular  the  excessive  reading  of  newspapers,  may 
have  produced  a  quickness  of  apprehension,  but  it  has 
been  accompanied  by  a  measure  of  volatility  and  incon- 
stancy in  opinion.  These  in  their  turn  have  bred  a  lik- 
ing for  novelty  and  excitement,  and  have  confirmed  the 
disposition  to  question  old-established  doctrines.  There 
is  an  increase,  especially  among  women,  of  the  things 
called  '  self-consciousness  '  and  '  nervous  tension/  Both 
men  and  women  are  more  excitable,  and  women  in  par- 
ticular are  more  fastidious.  Pleasures  other  than  mate- 
rial are  probably  more  appreciated,  but  the  desire  for 


MARRIAUE  AND  DIVORCE  847 

pleasure,  and  the  belief  that  every  one  has  a  right  to  it, 
seem  to  be  stronger  and  more  widely  diffused  than  ever 
before.  Some  will  perhaps  add  that,  in  an  age  when  the 
belief  in  a  future  state  of  rewards  and  punishments  is 
less  deep  and  less  general  than  it  once  was,  the  desire 
to  have  out  of  this  life  all  the  pleasure  it  can  be  made  to 
yield  is  naturally  stronger;  yet  I  doubt  whether  beliefs 
regarding  a  future  life  have  ever  influenced  men's  con- 
duct so  much  as  the  whilom  universality  of  those  beliefs 
might  lead  us  to  assume. 

All  these  tendencies  are  partly  due  to,  and  are  cer- 
tainly much  increased  by,  that  aggregation  of  population 
into  great  cities  which  makes  one  of  the  most  striking 
contrasts  between  our  time  and  the  ages  which  formed 
English  and  American  character.  It  is  in  industrial  and 
progressive  communities,  such  as  those  of  Germany, 
Belgium,  France,  and  England,  that  these  tendencies  are 
most  pervasive  and  effective.  They  are  even  more  per- 
vasive and  multiform  in  the  United  States  than  in 
Europe.  It  would  be  strange  indeed  if  they  did  not 
affect  the  theory  and  the  practice  of  domestic  relations 
and  the  conception  of  the  family.  And  their  influence 
will  evidently  be  greatest  in  the  country  where  the  ideas 
of  democratic  equality,  and  the  notion  that  every  human 
being  may  claim  certain  indefeasible  '  human  rights,' 
have  struck  deepest  root. 

The  idea  that  men  and  women  are  entitled  to  happi- 
ness, and  therefore  to  have  barriers  to  their  happiness 
removed,  is  strong  in  the  United  States,  and  has  gone 
far  to  prompt  both  the  indulgence  of  the  laws  and  the 
over-indulgence  shown  in  administering  them.  This 
idea  has  its  good  side.  The  fuller  recognition  of  the 
right  of  women  to  develop  their  individuality  and  be 
more  than  mere  appendages  to  men  is  one  of  the  con- 
spicuous gains  which  the  last  two  or  three  generations 
have  brought.  It  has  helped  to  raise  the  conception  of 
what  marriage  should  be,  so  we  must  expect  to  find 
that  it  has  made  women  less  tolerant  of  an  un-sym- 


846  MARRIAGE  AND  DIVORCE 

XXI.  TENDENCIES   AFFECTING  THE  PERMANENCE  OF 
THE  MARRIAGE  TIE. 

In  most  countries,  and  notably  in  England  and  the 
United  States,  married  women  have  obtained  power  over 
their  own  property,  including  their  earnings,  and  are 
now  less  dependent  upon  their  husbands  for  support 
than  they  were  formerly. 

In  most  countries  married  women  have  far  greater 
personal  independence  than  in  earlier  days.  They  can 
dispose  of  their  lives  as-  they  please,  and  are  permitted 
both  by  law  and  by  usage  an  always  increasing  freedom 
of  going  where  and  doing  what  they  will.  For  social 
purposes,  they  are  in  England  (at  least  those  who  be- 
long to  the  upper  and  middle  classes  are),  and  still  more 
in  the  United  States,  though  somewhat  less  in  such 
countries  as  Germany  and  Sweden,  entirely  the  equals 
of  men,  so  that  the  retention  of  the  promise  to  obey 
in  the  marriage  service  of  the  English  Church  excites 
amusement  by  its  discrepancy  from  the  facts. 

Over  and  above  these  changes  directly  affecting  the 
matrimonial  relation,  there  are  other  changes  which 
have  modified  life  and  thought.  The  old  deference  to 
custom  and  tradition,  and  therewith  the  stability  of  the 
social  structure  as  a  whole,  have  been  weakened.  Men 
move  much  more  from  place  to  place,  so  their  minds 
have  grown  less  settled.  The  habit  of  reading,  and  in 
particular  the  excessive  reading  of  newspapers,  may 
have  produced  a  quickness  of  apprehension,  but  it  has 
been  accompanied  by  a  measure  of  volatility  and  incon- 
stancy in  opinion.  These  in  their  turn  have  bred  a  lik- 
ing for  novelty  and  excitement,  and  have  confirmed  the 
disposition  to  question  old-established  doctrines.  There 
is  an  increase,  especially  among  women,  of  the  things 
called  '  self-consciousness  '  and  '  nervous  tension/  Both 
men  and  women  are  more  excitable,  and  women  in  par- 
ticular are  more  fastidious.  Pleasures  other  than  mate- 
rial are  probably  more  appreciated,  but  the  desire  for 


MARRIAGE  AND  DIVORCE  847 

pleasure,  and  the  belief  that  every  one  has  a  right  to  it, 
seem  to  be  stronger  and  more  widely  diffused  than  ever 
before.  Some  will  perhaps  add  that,  in  an  age  when  the 
belief  in  a  future  state  of  rewards  and  punishments  is 
less  deep  and  less  general  than  it  once  was,  the  desire 
to  have  out  of  this  life  all  the  pleasure  it  can  be  made  to 
yield  is  naturally  stronger;  yet  I  doubt  whether  beliefs 
regarding  a  future  life  have  ever  influenced  men's  con- 
duct so  much  as  the  whilom  universality  of  those  beliefs 
might  lead  us  to  assume. 

All  these  tendencies  are  partly  due  to,  and  are  cer- 
tainly much  increased  by,  that  aggregation  of  population 
into  great  cities  which  makes  one  of  the  most  striking 
contrasts  between  our  time  and  the  ages  which  formed 
English  and  American  character.  It  is  in  industrial  and 
progressive  communities,  such  as  those  of  Germany, 
Belgium,  France,  and  England,  that  these  tendencies  are 
most  pervasive  and  effective.  They  are  even  more  per- 
vasive and  multiform  in  the  United  States  than  in 
Europe.  It  would  be  strange  indeed  if  they  did  not 
affect  the  theory  and  the  practice  of  domestic  relations 
and  the  conception  of  the  family.  And  their  influence 
will  evidently  be  greatest  in  the  country  where  the  ideas 
of  democratic  equality,  and  the  notion  that  every  human 
being  may  claim  certain  indefeasible  '  human  rights,' 
have  struck  deepest  root. 

The  idea  that  men  and  women  are  entitled  to  happi- 
ness, and  therefore  to  have  barriers  to  their  happiness 
removed,  is  strong  in  the  United  States,  and  has  gone 
far  to  prompt  both  the  indulgence  of  the  laws  and  the 
over-indulgence  shown  in  administering  them.  This 
idea  has  its  good  side.  The  fuller  recognition  of  the 
right  of  women  to  develop  their  individuality  and  be 
more  than  mere  appendages  to  men  is  one  of  the  con- 
spicuous gains  which  the  last  two  or  three  generations 
have  brought.  It  has  helped  to  raise  the  conception  of 
what  marriage  should  be,  so  we  must  expect  to  find 
that  it  has  made  women  less  tolerant  of  an  un-sym- 


848  MARRIAGE  AND  DIVORCE 

pathetic  or  unworthy  partner  than  they  were  in  the 
eighteenth  century. 

It  would  not  therefore  be  wonderful  if,  even  apart 
from  such  facilities  as  legislation  has  allowed,  and  as- 
suming that  there  was  one  and  the  same  divorce  law 
over  all  civilized  countries,  the  United  States  should 
show,  as  Switzerland  shows  in  Europe,  an  exceptionally 
high  percentage  of  divorces  to  marriages.  Newspapers 
are  more  read  there  than  in  any  other  country;  and 
newspapers  contain  a  great  deal  about  matrimonial 
troubles  which  would  be  better  left  unpublished.  The 
life  of  the  middle  class  is  more  full  of  stir  and  change 
and  excitement  than  it  is  in  Europe.  Both  the  process 
described  as  the  emancipation  of  women,  and  the  admis- 
sion of  women  to  various  professions  and  employments 
formerly  confined  to  men,  have  gone  further  there  than 
in  Europe.  So  has  the  carrying  on  of  industries  in 
factories  instead  of  at  home.  So  has  the  habit  of  living 
in  hotels  or  boarding-houses. 

All  these  conditions  are  less  favourable  than  were  the 
conditions  of  a  century  ago  to  the  maintenance  of  do- 
mestic life  on  the  old  lines.  And  over  and  above  these, 
there  has  come  that  extreme  laxity  of  the  law  and  of 
judicial  procedure  which  has  been  already  described. 
Thus  we  can  easily  account  for  the  comparative  fre- 
quency of  divorce  in  the  United  States,  while  yet 
noting,  for  this  is  the  point  of  real  importance,  that 
the  phenomena  of  the  United  States  are  not  isolated, 
but  merely  the  most  conspicuous  instance  of  a  ten- 
dency which  is  at  work  everywhere,  and  which 
springs  from  some  widely  diffused  features  of  modern 
life. 

The  points  of  similarity  between  the  history  of  divorce 
at  Rome  and  its  history  in  recent  times  need  not  be 
further  insisted  on.  There  is,  however,  one  to  which 
I  have  not  yet  adverted.  At  Rome  the  increase  of  con- 
jugal infidelity  and  that  of  divorce  would  seem,  from 
such  data  as  law  and  literature  give  us,  to  have  gone  on 


MARRIAGE  AND  DIVORCE  849 

together,  each  fostering  the  other.     Is  there  any  like 
connexion  discoverable  now? 

This  is  a  question  which  it  appears  impossible  to  an- 
swer either  generally  or  for  any  particular  country. 
There  are  no  statistics  available,  except  for  matrimonial 
causes  coming  into  the  Courts,  and  we  can  never  tell 
what  proportion  the  offences  that  are  disclosed  bear  to 
those  which  remain  hidden.  There  have  been  countries 
where  the  level  of  sexual  morality  was  extremely  low, 
at  least  among  the  wealthier  classes,  though  no  divorce 
was  permitted.  There  may  be  countries  where  the  very 
fact  that  the  level  is  low  keeps  down  the  number  of 
applications  to  the  Court,  because  the  injured  party 
acquiesces  and  takes  his  or  her  revenge  in  like  offences. 
Common  talk,  and  literature  which  as  regards  the  past 
may  sometimes  represent  nothing  more  than  common 
talk  ',  are  unsafe  guides,  as  any  one  will  see  who  asks 
himself  how  much  he  knows  about  the  moral  state  of  his 
own  country  in  his  own  time.  He  can  form  some  sort 
of  guess  about  the  character  of  the  '  social  set '  he 
moves  in,  but  how  little  after  all  does  he  know  about 
the  classes  above  or  below  his  own!  Thus  there  can 
be  very  few  persons  in  England  whose  means  of  infor- 
mation entitle  them  to  say  that  the  undoubted  increase 
of  divorce  cases  in  our  Courts  since  1860  represents 
any  decline  in  the  average  conjugal  morality  of  the  peo- 
ple. As  regards  the  United  States,  I  have  heard  the 
most  opposite  views  expressed  with  equal  confidence 
by  persons  who  ought  to  have  been  equally  well-in- 
formed. Judicial  statistics  do  not  prove  that  infidelity 
has  become  more  common  there,  for  the  largest  propor- 
tion of  divorces  granted  is  for  desertion,  38.5  per  cent, 
of  the  whole,  those  for  infidelity  being  little  more  than 
half  of  that  percentage,  or  about  one-fifth  of  the  whole. 

*  Sometimes  not  even  that.  A  few  years  ago,  in  the  United  States  Senate,  some 
one  quoted,  in  order  to  prove  the  corruption  of  public  life  in  England,  a  play  re- 
presented there,  in  which  a  Secretary  of  State  or  his  wife  was  involved  in  a  dis- 
graceful job  connected  with  an  Indian  railway.  Nobody  in  England  bad  taken 
such  a  thing  seriously  enough  to  comment  on  the  absurdity  of  it. 

54 


850  MARRIAGE  AND  DIVORCE 

At  the  same  time  the  smallness  of  this  percentage  may 
count  for  less  than  might  appear,  for  it  is  probable  that 
in  States  where  divorce  can  be  obtained  for  other 
grounds,  less  serious  and  easier  to  prove  than  infidelity 
is,  petitioners  will,  where  they  have  a  choice  of  several 
charges  to  make,  put  forward  a  less  grave  charge  pro- 
vided it  is  sufficient  to  secure  their  object.  So  far  as 
my  own  information  goes,  the  practical  level  of  sexual 
morality  is  at  least  as  high  in  the  United  States  as  in 
any  part  of  northern  or  western  Europe  (except  possibly 
among  the  Roman  Catholic  peasantry  of  Ireland),  and 
experienced  judges  in  America  have  told  me  that,  odious 
as  they  find  the  divorce  work  of  their  courts,  the  thing 
which  strikes  them  in  the  cases  they  deal  with  is  more 
frequently  the  caprice  and  fickleness,  the  irritability  and 
querulous  discontent  of  couples  who  have  married  on 
some  passing  fancy,  than  a  proclivity  to  breaches  of 
wedded  troth. 

Indeed,  so  far  from  holding  that  marriages  are  more 
frequently  unhappy  in  the  United  States  than  in  western 
Europe,  most  persons  who  know  both  countries  hold 
the  opposite  to  be  the  case.  On  the  whole,  therefore, 
there  seems  no  ground  for  concluding  that  the  increase 
of  divorce  in  America  necessarily  points  to  a  decline 
in  the  standard  of  domestic  morality,  except  perhaps  in 
a  small  section  of  the  wealthy  class,  though  it  must  be 
admitted  that  if  this  increase  should  continue,  it  may 
tend  to  induce  such  a  decline. 

The  same  conclusion  may  well  be  true  regarding  the 
greater  frequency  of  divorce  all  over  the  world.  There 
is  no  reason  to  think  that  sexual  passion  leading  to  con- 
jugal infidelity  is  any  commoner  than  formerly  among 
mankind.  More  probably  passion  is  tending  to  grow 
rather  weaker  than  it  was  formerly.  But  that  which  we 
call  Individualism,  viz.  the  desire  of  each  person  to  do 
what  he  or  she  pleases,  to  gratify  his  or  her  tastes,  lik- 
ings, caprices,  to  lead  a  life  which  shall  be  uncontrolled 
by  another's  will — this  grows  stronger.  So,  too,  what- 


MARRIAGE  AND  DIVORCE  851 

ever  stimulates  the  susceptibility  and  sensitiveness  of 
the  nervous  system  tends  to  make  tempers  more  irrita- 
ble, and  to  produce  causes  of  friction  between  those  who 
are  in  constant  contact.  Here  is  a  source  of  trouble 
that  is  likely  to  grow  with  the  growing  strain  of  life,  and 
with  the  larger  proportion  which  other  interests  bear  in 
modern  life  to  those  home  interests  which  formerly 
absorbed  nearly  the  whole  of  a  woman's  thoughts.  It 
is  temper  rather  than  unlawful  passion  that  may  prove 
in  future  the  most  dangerous  enemy  to  the  stability  of 
the  marriage  relation. 

XXII.    INFLUENCE  OF  THE  CHURCH  AND  THE  LAW. 

The  view  of  marriage  as  a  tie  which  the  parties  in- 
tend to  enter  into  for  their  lives,  and  which  the  law 
holds  indissoluble,  has  hitherto  rested  not  so  much. on 
any  abstract  theory  or  sentiment  which  men  and  women 
have  entertained  regarding  it  as  upon  the  three  authori- 
ties which  have  formed  both  sentiment  and  opinion. 
These  three  are  the  Church,  the  State,  and  Tradition, 
that  is  to  say  the  beliefs  which  people  adopt  because 
they  have  come  down  from  the  past.  The  attitude  of 
the  Church  has  in  Protestant  nations  sensibly  altered. 
In  some  countries  it  altered  in  the  sixteenth  century. 
It  has  everywhere  altered  in  the  nineteenth.  So,  too, 
the  support  given  to  the  old  view  by  the  State  has  in 
like  manner  become  in  those  same  countries  much 
weaker,  and  in  some  countries,  as  for  example  in  Swit- 
zerland and  many  American  States,  has  almost  disap- 
peared. Public  opinion  has  itself  been  largely  formed 
by  the  Church  and  the  Law,  and  may,  when  they  have 
ceased  to  form  it,  be  no  longer  an  effective  guardian  of 
the  permanence  and  dignity  of  marriage.  In  such  demo- 
cracies as  those  of  the  United  States,  the  wish  of  an 
active  minority  to  procure  changes  in  the  law  easily 
prevails,  because  no  one  cares  to  resist,  and  because 
abstract  principles  suggest  that  the  more  everybody  is 


854  MARRIAGE  AND  DIVORCE 

it  has  been  often  and  copiously  argued.  Yet  it  is  not 
a  question  to  be  dismissed  without  argument,  for  in 
our  day  no  moral  or  religious  dogma,  however  long 
established  or  widely  held,  is  permitted  to  rest  upon 
authority  alone.  But  to  argue  it  fully  would  draw  us 
far  from  the  historical  inquiry  we  have  been  engaged 
on.  It  is  enough  to  indicate  in  a  word  or  two  the  main 
grounds  which  have  in  fact  led  the  vast  majority  of 
thoughtful  men  to  the  assumption  aforesaid.  The  first 
of  these  is  the  interest  of  children.  Few  things  can  be 
more  harmful  to  the  moral  well-being  of  the  offspring 
of  a  marriage  than  the  divorce  of  their  parents,  which 
destroys  one  or  other  of  the  two  best  influences  that 
work  on  childhood  and  may  poison  even  the  influence 
that  is  left.  The  next  is  the  fact  that,  though  it  is  pro- 
fessedly in  the  interest  of  suffering  wives  that  facility 
of  divorce  is  usually  advocated,  such  facility  tends  to 
the  injury  of  wives  even  more  than  of  husbands,  because 
men  are,  it  would  seem,  more  fickle  and  more  prone 
to  seek  the  dissolution  of  marriage  when  they  are  tired 
of  their  partner,  or  have  formed  some  illicit  connexion, 
or  seek  to  marry  some  other  woman.  The  third  is 
that  whatever  weakens  the  conception  of  the  marriage 
tie  as  a  permanent  one  strikes  at  the  whole  character 
and  essence  of  the  marriage  relation.  It  is  often  said 
that  when  people  know  they  have  got  to  live  together, 
they  are  forced  to  exercise  the  self-control  necessary 
to  enable  them  to  live  together.  But  the  moral  effect  of 
the  sense  of  permanence  in  wedded  union  goes  deeper 
than  this.  It  is  in  the  complete  identification  of  the 
two  beings  and  the  two  lives  that  the  true  happiness  of 
a  happy  marriage  lies.  The  sense  that  each  has  abso- 
lutely committed  himself  or  herself  to  the  other — each 
taking  charge  of  the  joys  and  sorrows  and  hopes  of  the 
other,  each  trusting  to  the  other  his  or  her  joys  and 
sorrows  and  hopes — gives  to  the  relation  an  incompara- 
ble sanctity,  and  makes  the  strongest  possible  appeal  to 
the  best  feelings  of  each.  If  selfishness  and  falsehood 


MARRIAGE  AND  DIVORCE  855 

can  be  overcome  by  anything,  it  is  by  calling  into  action 
the  sense  of  obligation  to  fulfil  this  trust  which  the  en- 
during nature  of  the  union  is  calculated  to  inspire.  Were 
the  union  to  cease  to  be  thought  of  as  enduring,  were  it 
to  be  in  the  minds  of  the  parties,  as  their  minds  are 
moulded  by  the  practice  and  the  prevailing  notions  of 
society,  merely  the  result  and  expression  of  a  possibly 
transient  passion,  or  of  the  willingness  to  try  the  experi- 
ment of  a  joint  household,  the  sanctity  and  the  sense  of 
obligation  would  receive  an  irreparable  blow. 

Thus  we  are  driven  to  the  conclusion  that  numerous 
as  the  cases  may  be  in  which,  if  one  looked  only  at  the 
wretchedness  of  the  parties  to  an  ill-assorted  union,  one 
might  desire  to  see  that  union  dissolved,  more  harm  than 
good  may  on  the  whole  result  from  permitting  the  par- 
ties to  dissolve  their  union  at  their  pleasure,  as  the  later 
Romans  did,  as  the  French  did  during  the  Revolution, 
and  as  some  American  States  practically  do  to-day;  and 
more  harm  than  good  may  result  even  from  extending 
in  large  measure  the  opportunities  for  divorce  which 
the  law  of  England  or  that  of  Scotland  at  this  moment 
affords. 

How  vital  to  the  future  of  humanity  are  the  interests 
involved  is  admitted  on  all  hands  by  those  who  would 
change,  as  well  as  by  those  who  would  uphold,  the  con- 
ception of  marriage  as  a  permanent  relation.  Great  as 
is  the  contrast  between  that  sensual  and  unworthy  view 
which  finds  its  expression  in  the  polygamy  of  the  East 
and  the  view  which  Christianity  has  formed  among 
Western  peoples,  it  is  hardly  greater  than  that  which 
exists  between  the  view  of  marriage  as  a  life-union,  dis- 
soluble only  when  infidelity  has  shattered  its  basis,  and 
the  view  which  puts  it  at  the  mercy  of  the  caprice  of  a 
volatile  nature  or  the  temper  of  an  irritable  one.  Poly- 
gamy has  been  and  remains  a  blighting  influence  on 
Musulman  society,  and  on  the  character  of  individual 
Musulmans.  So  if  marriage  were  to  become  a  transitory 
relation,  as  it  practically  was  among  the  upper  classes  in 


856  MARRIAGE  AND  DIVORCE 

the  Roman  Empire,  the  effects  upon  family  life  and  on 
the  character  of  men  and  women  would  in  the  long  run 
be  momentous. 

XXIV.       SOME     GENERAL     REFLECTIONS:     CHANGES    IN 
THEORY  AND  IN  SENTIMENT  REGARDING  MARRIAGE. 

A  few  words  more  to  sum  up  the  general  result  of 
our  survey.  We  have  seen  that  the  relations  of  the 
wife  to  the  husband  have  been  regulated  sometimes  by 
one,  sometimes  by  the  other  of  two  systems,  which  have 
been  called  those  of  Subordination  and  Equality1.  In 
all  countries  custom  and  law  begin  with  the  system  of 
Subordination.  In  some,  the  wife  is  little  better  than 
a  slave.  Even  at  Rome,  though  she  was  not  only  free 
but  respected,  her  legal  capacity  was  merged  in  her 
husband's. 

This  system  vanishes  from  Rome  during  the  last  two 
centuries  of  the  Republic,  and  when  the  law  of  Rome 
comes  to  prevail  over  the  whole  civilized  world,  the 
system  of  Equality  (except  so  far  as  varied  by  local 
custom)  prevails  over  that  world  till  the  Empire  itself 
perishes. 

In  the  Dark  Ages  the  principle  of  the  subordination 
of  the  wife  is  again  the  rule  everywhere,  though  the 
forms  it  takes  vary,  and  it  is  more  complete  in  some 
countries  than  in  others.  It  was  the  rule  among  the 
Celtic  and  Teutonic  peoples  before  they  were  Christian- 
ized. It  finds  its  way,  through  customs  conformable  to 
the  rudeness  of  the  times,  into  the  law  of  those  coun- 
tries which,  like  Italy,  Spain,  and  France,  were  only  par- 
tially Teutonized,  and  retained  forms  of  Latin  speech. 
It  holds  its  ground  in  England  till  our  own  time,  though 

1  By  Equality  I  do  not  mean  any  recognition  of  Identity  or  even  Similarity  as 
respects  capacity  and  practical  work  (though  the  tendency  is  in  that  direction),  but 
the  equal  possession  of  private  civil  rights  and  the  admission  ot  an  individuality 
entitled  to  equal  respect  and  an  equally  free  play  of  action.  Such  Equality  is  per- 
fectly compatible,  given  sufficient  affection,  with  a  complete  identification  of  the 
consorts  in  the  harmony  which  comes  of  the  union  of  diverse  but  complementary 
elements. 


V  I/?/?/  U,7:    AM)    l)l\0h'<  I 

latterly  much  modified  by  the  process  which  we  call 
the  emancipation  of  women,  a  process  which,  under  the 
influence  of  democratic  ideas,  has  moved  most  swiftly 
and  has  gone  furthest  among  the  English  race  in  North 
America.  But  in  our  own  time  the  principle  of  equality 
has,  in  most  civilized  countries,  triumphed  all  along  the 
line,  and  so  far  as  we  can  foresee,  has  definitely  tri- 
umphed. One  must  imagine  a  complete  revolution  in 
ideas  and  in  social  habits  in  order  to  imagine  a  return 
to  the  system  of  Subordination  as  it  stood  two  cen- 
turies ago. 

As  there  have  been  two  systems  determining  the  re- 
lations of  husband  and  wife  in  respect  of  property  and 
of  personal  control,  so  also  have  there  been  through- 
out all  history  two  aspects  of  the  institution  of  marriage, 
one  in  which  the  sensual  and  material  element  has  pre- 
dominated, the  other  in  which  the  spiritual  and  religious 
element  has  come  in  to  give  a  higher  and  refining  cha- 
racter to  the  relation.  In  this  case,  however,  it  is  not 
possible  to  make  the  relative  importance  of  these  two 
aspects  synchronize  with  the  general  progress  of  civili- 
zation, nor  even  with  the  elevation  of  the  position  of 
women.  It  is  true  that  among  barbarous  and  some 
semi-civilized  races  the  physical  side  of  the  institution 
is  almost  solely  regarded,  and  that  we  may  suppose  a 
remote  age  when  primitive  man  was  in  this  respect  not 
much  above  the  level  of  other  animals.  But  there  have 
been  epochs  when  civilization  was  advancing  while  the 
moral  conception  of  marriage,  or  at  any  rate  the  popu- 
lar view  of  marriage  as  a  social  relation,  was  declining. 
The  tie  between  husband  and  wife  in  the  earlier  days  of 
Rome  was  not  only  closer  but  more  worthy  and  whole- 
some in  its  influence  on  the  lives  of  both  than  it  had 
become  in  the  age  of  Augustus.  Christianity  not  only 
restored  to  the  tie  its  religious  colour,  but  in  dignifying 
the  individual  soul  by  proclaiming  its  immortality  and 
its  possibility  of  union  with  God  through  Christ  gave  a 
new  and  higher  significance  to  life  as  a  whole,  and  to 


858  MARRIAGE  AND  DIVORCE 

the  duties  which  spring  from  marriage.  The  greatest 
advance  which  the  Christian  world  made  upon  the  pagan 
world  was  in  the  view  of  personal  purity  for  both  sexes 
which  the  New  Testament  inculcated,  a  view  absent 
from  the  Greek  and  Italian  religions  and  from  Greek 
and  Latin  literature,  though  there  had  been  germs  of 
it  in  the  East,  where  habits  of  sensual  indulgence  more 
degrading  than  those  of  the  West  were  opposed  by 
theories  of  asceticism,  which  passed  into  and  tinged 
primitive  and  mediaeval  Christianity. 

The  more  ennobling  view  of  love  and  of  the  marriage 
relation  held  its  ground  through  the  Middle  Ages. 
There  was  plenty  of  profligacy — as  indeed  the  ideal 
and  the  actual  have  never  been  more  disjoined  than  in 
the  Middle  Ages.  But  in  spite  of  profligacy  on  the  one 
hand,  and  the  glorification  of  celibacy  on  the  other,  and 
notwithstanding  the  subjection  of  women  in  the  matter 
of  property  and  even  of  personal  freedom,  the  concep- 
tion of  wedded  life  as  recognized  by  the  law  of  the 
Church  and  enshrined  in  poetry  remained  pure  and  lofty. 
That  the  Reformation  took  away  part  of  the  religious 
halo  which  had  surrounded  matrimony  may  be  ad- 
mitted. Whether  this  involved  a  practical  loss  is  a  diffi- 
cult question.  It  may  be  that,  in  their  anxiety  to  be  rid 
of  what  they  deemed  superstition,  and  in  their  disgust 
at  the  tricky  and  mercenary  way  in  which  ecclesiastical 
lawyers  had  played  fast  and  loose  with  the  intricate 
rules  of  canonical  impediment,  the  Reformers  of  Ger- 
many, Scandinavia,  and  Scotland  forgot  to  dwell  suffi- 
ciently on  the  fact  that  though  marriage  is  a  civil  rela- 
tion in  point  of  form  and  legal  effect,  it  ought  to  be,  to 
Christians,  essentially  also  a  religious  relation,  the  true 
consecration  of  which  lies  not  in  the  ceremonial  blessing 
of  the  Church,  but  in  the  solemnity  of  the  responsibilities 
it  involves.  Yet  it  is  not  clear  that,  in  point  of  domestic 
happiness  or  domestic  purity,  the  nations  which  have 
clung  to  the  mediaeval  doctrine  stood  a  century  ago, 
or  stand  now,  above  those  which  had  renounced  it. 


MARRIAGE  A  AD  DIVORCE  859 

General  theories  regarding  the  influence  of  particular 
forms  of  religion,  like  theories  regarding  the  influence 
of  race,  are  apt  to  be  misleading,  because  many  other 
conditions  have  to  be  regarded  as  well  as  those  on  which 
the  theorist  is  inclined  to  dwell. 

Whoever  regards  the  doctrines  of  the  Roman  Catholic 
Church  respecting  marriage  and  realizes  her  power  over 
her  members  will  expect  to  find  a  higher  level  of  sexual 
morality  in  Roman  Catholic  countries  than  he  will  in 
fact  find.  So  on  the  other  hand  will  he  be  disappointed 
who  accepts  that  view  of  the  superiority  in  social  virtues 
of  peoples  of  Teutonic  stock  which  finds  so  much  favour 
among  those  peoples,  for  dissolutions  of  the  marriage 
tie  have  latterly  grown  more  frequent  than  they  formerly 
were  among  Protestant  and  Teutonic  nations,  and  are 
apparently  less  condemned  by  public  opinion  than  was 
the  case  in  older  days. 

The  material  progress  of  the  world,  the  mastery  of 
man  over  nature  through  a  knowledge  of  her  laws,  the 
diffusion  of  knowledge  and  of  the  opportunities  for 
acquiring  it,  are  themes  which  ceaselessly  employ  the 
tongues  of  speakers  and  the  pens  of  journalists,  while 
they  swell  with  pride  the  heart  of  the  ordinary  citizen. 
But  they  are  not  the  things  upon  which  the  moral  ad- 
vancement of  mankind  or  the  happiness  of  individuals 
chiefly  turns.  They  co-exist,  as  the  statistics  of  recent 
years  show,  with  an  increase  over  all,  or  nearly  all, 
civilized  countries  of  lunacy,  of  suicide,  and  of  divorce. 


XVII 

INAUGURAL  LECTURED 

THE    ACADEMICAL    STUDY    OF 
THE   CIVIL   LAW 

NARROW  as  is  the  sea  that  parts  England  from  the  continent 
of  Europe,  it  has  cut  her  off  as  effectually  from  many  conti- 
nental influences  as  if  she  lay  far  out  in  mid-Atlantic.  When 
it  is  considered  how  close  are  our  affinities  of  blood  with  the 
Low-German  races,  and  how  intimate  during  the  Middle  Ages 
were  our  relations,  intellectual  as  well  as  political,  with  the 
whole  of  Western  Europe,  the  individuality  of  the  English 
people  and.  its  institutions  appears  singularly  well-marked ; 
and  one  is  surprised  to  see  in  how  many  points  the  great 
nations  of  the  continent  resemble  one  another  and  understand 
one  another,  while  all  alike  differ  from  us,  and  are  compara- 
tively incomprehensible  to  us.  This  strangeness  of  England 
is  what  most  strikes  the  foreigner  who  comes  among  us ;  be 
he  Frenchman,  German,  Spaniard,  or  Italian,  he  seems  less 
at  home  in  England  than  anywhere  else  in  Christendom.  As 
in  the  woodland  wealth  of  our  country,  as  in  the  architecture 
of  our  towns  and  the  structure  of  our  houses,  so  also  in  the 
social  usages  and  mental  habits  of  Englishmen  one  discovers 
something  peculiar,  something  bearing  witness  to  a  prolonged 
isolation,  to  an  exemption  from  those  influences,  speculative 
as  well  as  practical,  which  have  operated  on  all  or  nearly  all 
the  other  members  of  the  European  commonwealth. 

Such  isolation  has  been  in  no  respect  more  marked  or  more 

1  Delivered  at  Oxford,  February  25,  1871,  on  entering  on  the  duties  of  the  Regius 
io  of  Civil  Law. 


INAUGURAL    LKm  A'/-;  861 

fruitful  in  results  than  in  the  case  of  our  law.  In  spite  of  the 
immense  power  of  the  mediaeval  church,  in  spite  of  the  influ- 
ence of  the  universities,  and  of  the  strangers  who  flocked  to 
them  from  all  quarters,  the  Roman  jurisprudence  exerted  a 
comparatively  slight  influence  upon  the  technical  develop- 
ment of  our  law  and  the  formation  of  our  habits  of  legal 
thought.  Here,  where  the  language,  and  to  a  great  extent 
the  customs  of  the  people,  were  of  Teutonic  origin,  it  found 
a  less  congenial  soil  than  in  Italy  or  France,  while  there  were 
no  such  political  associations  with  the  Roman  name  as  those 
which  gave  the  Corpus  Juris  its  authority  in  Germany.  What- 
ever be  the  cause,  it  is  clear  that  Roman  law  was  never  tho- 
roughly domesticated  in  England.  True  it  is  that  one  of  the 
first  notices  we  have  of  the  existence  of  our  University  is  that 
which  mentions  the  Lombard  Vacarius  as  lecturing  on  law 
(doubtless  on  the  Digest  of  Justinian)  at  Oxford,  under  the 
patronage  of  Archbishop  Theobald,  in  the  days  of  King 
Stephen ' ;  and  there  is  abundant  evidence  that  the  study  was 
regularly  pursued  there  down  till  and  in  the  sixteenth  cen- 
tury. The  statutes  of  the  older  colleges  make  provision  for 
some  of  the  fellows  proceeding  to  degrees  in  law ;  and  indeed 
the  only  law  degrees  Oxford  has  given,  since  those  in  canon 
law  were  abolished  by  King  Henry  the  Eighth,  have  been 
degrees  in  civil  law.  But  the  customary  or  common  law, 
unrecognized  in  the  universities,  gained  exclusive  possession 
of  the  seats  of  legal  study  in  London.  That  hostility  to  the 
pretensions  of  the  foreign  laws  which  had  been  so  forcibly 
expressed  by  the  barons  at  Merton  in  Henry  the  Third's  time, 
and  again  by  the  Parliament  of  Richard  the  Second,  main- 
tained ever  after  a  watchful  and  jealous  attitude.  Persons 
who  had  mastered  Roman  law  at  Oxford  were  obliged,  when 
they  practised  in  the  courts  at  Westminster,  to  disguise  or 
disclaim  any  appeal  to  its  authority ;  and  when  the  Reforma- 
tion finally  broke  the  link  between  England  and  Rome,  and 

»  '  Oriuntur  discordiae  graves,  lites  et  appellationes  antea  inauditae.  Tune  leges 
et  causidici  in  Angliam  primo  vocati  sunt,  quorum  primus  erat  magister  Vacarius. 
Hie  in  Oxenefordia  legem  docuit,  et  apud  Romam  magister  Gracianus  et  Alexan- 
der, qui  et  Rodlandus,  in  proximo  papa  futurus,  canones  compilavit.' — (Gervas. 
Dorob. ;  Act.  Pontif.  Cantuar.  ;  Thcodbaldus.} 


862  INAUGURAL  LECTURE 

in  doing  so  loosened  the  ties  that  bound  English  men  of 
letters  to  the  general  movement  of  European  learning  and 
thought,  the  study  of  the  canon  law  virtually  expired  among 
.us,  while  that  of  the  Civil  Law  maintained  only  a  feeble  and 
flickering  life1.  Its  practical  utility  (except  to  practitioners 
in  the  ecclesiastical  courts)  was  apparently  at  an  end ;  and  in 
the  cloud  of  dullness  and  sluggishness  that  settled  down  upon 
Oxford  and  Cambridge  at  the  end  of  the  seventeenth  century, 
it  only  shared  the  fate  of  other  studies  which  had  as  much  to 
commend  them  to  an  active  and  curious  intellect.  A  few 
distinguished  publicists  and  lawyers,  such  as  Arthur  Duck, 
Selden,  Hale,  Holt,  and  those  two  brightest  ornaments  of 
the  English  bench,  Lord  Hardwicke  and  Lord  Mansfield, 
were  well  versed  in  its  rules,  but  the  great  mass  of  English 
lawyers  regarded  it  with  suspicion  and  dislike,  and  the  very 
praise  which  Hale  bestows  testifies  to  the  slight  interest  felt 
in  it.  '  He  set  himself  much,'  says  Bishop  Burnet  his  biogra- 
pher, '  to  the  study  of  the  Romane  law,  and  though  he  liked 
the  way  of  judicature  in  England  by  juries  much  better  than 
that  of  the  civil  law,  where  so  much  was  trusted  to  the  judge, 
yet  he  often  said  that  the  true  grounds  and  reasons  of  law 
were  so  well  delivered  in  the  Digests,  that  a  man  could  never 
understand  law  as  a  science  so  well  as  by  seeking  it  there, 
and  lamented  much  that  it  was  so  little  studied  in  England.' 

The  ancient  rivalry  of  the  Civil  and  the  Common  law 
proved  eventually  the  cause  of  mischief  to  both.  Having 
reigned  supreme  in  the  universities,  the  civil  law  had  never 
taken  root  in  the  Inns  of  Court,  and  when  it  fell  in  the  uni- 
versities it  fell  utterly.  On  the  other  hand,  the  common 
lawyers,  whose  study  was  originally  not  recognized  in  Oxford 
or  Cambridge,  were  well  enough  content  with  the  position 
they  had  obtained  for  it  in  London,  and  do  not  seem  to  have 
seen  how  much  was  to  be  gained  by  introducing  it  into  the 
ancient  seats  of  learning.  Thus  both  systems,  to  the  loss  as 
well  of  the  profession  as  of  the  universities,  came  to  be 

1  For  some  time  after  the  breach  Englishmen  used  to  resort  to  continental  uni- 
versities, and  there,  of  course,  they  found  Roman  law  taught ;  but  this  practice 
died  out  before  very  long. 


J\AUOURAL  LECTlh'i:  S63 

neglected  in  the  very  places  where  they  might  best  have  been 
cultivated  in  a  philosophical  spirit;  and  it  was  not  until  Mr. 
Viner  founded  his  Chair  in  A.D.  1756  that  English  law  was 
recognized  in  Oxford  as  an  academic  study,  while  in  Cam- 
bridge no  provision  was  made  for  the  teaching  of  it  until  the 
beginning  of  the  present  century. 

That  isolation  of  England  to  which  the  neglect  of  the  Civil 
Law  may  be  ascribed  has  of  late  years  perceptibly  diminished. 
Owing  partly  to  the  more  frequent  and  easy  intercourse  which 
improved  means  of  communication  have  produced,  partly  to 
the  removal  of  old  national  prejudices,  partly  to  that  in- 
creased recognition  of  the  power  of  ideas  which  is  commonly 
associated  with  the  growth  of  democracy,  civilized  Europe 
has  within  the  last  eighty  or  ninety  years  become  much  more 
of  a  single  intellectual  commonwealth  than  it  has  been  at 
any  time  since  the  Reformation,  perhaps,  indeed,  since  the 
fall  of  the  Roman  Empire.  The  long-standing  jealousy  of 
the  Civil  Law  as  a  foreign  system,  associated  with  the  over- 
weening pretensions  of  emperors  and  popes,  has  at  last  van- 
ished. A  century  ago  this  feeling  was  still  so  active,  that 
Lord  Mansfield's  enemies  found  it  worth  while  to  charge  him 
with  having,  as  a  Scotsman,  an  undue  partiality  for  the 
Roman  law,  and  designing,  by  means  of  its  despotic  princi- 
ples, to  sap  the  liberties  of  Englishmen — '  corrupting  by 
treacherous  arts  the  noble  simplicity  and  free  spirit  of  our 
Saxon  laws  ; '  though  as  a  matter  of  fact,  Lord  Mansfield  left 
Scotland  at  the  age  of  three,  and  the  use  which  he  made  of 
his  knowledge  of  Roman  jurisprudence  was  made  by  applying 
its  rational  principles  to  the  elucidation  of  the  civil,  and 
indeed  chiefly  of  the  commercial  parts  of  the  English  system. 
Such  prejudices  seem  now  to  lie  far  behind.  We  live  in  the 
midst  of  a  general  unsettling  of  respect  for  whatever'exists, 
which  does  not  spare  the  laws  or  even  the  constitution  of 
England,  and  welcomes  new  ideas  from  every  quarter.  Thus 
the  influence  of  the  great  German  civilians  begins  to  tell 
upon  English  students,  while  the  rise  of  a  vigorous  historical 
school  in  England  has  quickened  our  curiosity  in  whatever 
helps  to  explain  the  ancient  and  the  mediaeval  world.  The 


864  INAUGURAL  LECTURE 

feeling  so  awakened  has  happily  coincided  with  an  interest 
in  the  scientific  amendment  of  the  form  oi  English  law,  dif- 
ferent from  that  desire  to  improve  and  correct  its  substance 
of  which  Bentham  was  the  first  exponent,  and  which  inspired 
the  labours  of  Romilly  and  Brougham. 

The  efforts  of  these  great  men  were  chiefly  directed  to  the 
removal  of  harsh  enactments,  of  rules  due  to  economic  errors, 
and  of  technicalities  which  defeated  the  ends  of  justice. 
Their  modern  successors,  finding  the  law  purged  of  its  grosser 
faults,  are  rather  concerned  with  its  reduction  into  a  more 
orderly  and  systematic  shape.  The  three  leading  questions 
of  reform  at  this  moment  are  questions  of  form,  relating  not 
so  much  to  substance  as  to  the  shape  and  form  which  the  law 
ought  to  take.  What  are  the  best  means  of  fusing  legal  and 
equitable  procedure '  ?  How  may  Acts  of  Parliament  be 
drawn  more  concisely  and  symmetrically  ?  How  are  we  to 
frame,  out  of  the  vast  and  chaotic  mass  of  our  reported  cases 
and  statutes,  an  organized  body  of  rules,  a  Digest  or  a  Code  ? 
Finding  themselves  thus  brought  face  to  face  with  the  pro- 
blem which  Justinian  partially  solved,  and  which  several  mo- 
dern states,  as  notably  France,  Austria,  Prussia,  and  Italy  have 
again  had  to  solve  *,  English  lawyers  are  being  driven  to  ex- 
amine the  means  whereby  codification  was  accomplished, 
and  the  results  that  followed  it.  They  feel  that  for  the  exe- 
cution of  so  great  a  work  men  are  needed  who  have  had  some- 
thing more  than  an  empirical  training,  and  are  disposed  to 
believe  that  in  any  systematic  course  of  legal  history  and 
philosophy  which  might  be  devised  to  form  the  mind  of  the 
jurist  as  preliminary  to  his  purely  professional  studies,  a 
chief  place  should  be  assigned  to  the  study  of  the  Roman 
law.  Thus,  what  with  our  own  actual  needs,  what  with  the 
influence  of  the  scientific  spirit  of  the  Continent,  there  has 
been  awakened  in  England  an  interest  in  the  Civil  Law  and 
an  estimate  of  its  worth  which,  although  still  matter  rather 
of  faith  than  of  sight,  is  yet  strong  enough  to  give  the  Uni- 

1  This  was  effected  by  the  Judicature  Act  of  1873. 

3  To  these  one  may  now  add  the  new  German  Empire,  which  was  coming  into 
being  when  this  Lecture  was  delivered  in  A.D.  1871.  A  Civil  Code  for  the  Empire 
began  to  be  prepared  in  1872  and  came  into  force  in  1900. 


INAUGURAL   UI<  Ti  /,•/•;  s»ir, 

versity  of  Oxford  not  merely  a  motive  for  endeavouring  to 
revive  the  study,  but  a  reasonable  hope  that  it  maybe  revived 
with  success,  to  the  substantial  benefit  as  well  of  the  univer- 
sities themselves  as  of  the  legal  profession. 

To  prove  that  Roman  law  does  deserve  in  England,  and 
especially  from  the  University,  more  attention  than  it  now 
receives  may  well  be  thought,  at  least  in  Oxford,  a  spot 
which  was  long  its  home,  a  superfluous  labour.  That  it  fills 
so  large  a  place  in  the  world's  history,  that  it  is  the  fruit  of 
so  great  an  expenditure  of  human  genius  and  industry,  is  of 
itself  a  sufficient  reason  why  it  should  engage  the  labours  of 
a  learned  body  which  has,  in  Bacon's  words,  taken  all  know- 
ledge to  be  its  province.  I  may  therefore  content  myself  with 
touching  upon  some  of  the  purposes  which  the  study  may  be 
made  to  serve,  and  indicating  some  of  the  directions  in  which 
it  may  most  usefully  be  pursued;  premising  always  that  aca- 
demical study  has  two  objects,  the  furtherance  of  learning 
and  discovery,  and  the  preparation  of  young  men  to  be,  not 
merely  useful  and  active  in  their  future  occupations,  but 
also,  in  the  widest  sense  of  the  word,  good  citizens.  These 
two  objects  have  been  sometimes,  under  the  names  of  Re- 
search and  Education,  opposed  to  one  another,  and  no  small 
controversy  has  been  maintained  touching  their  respective 
claims.  Are  they  not  in  truth  closely  intertwined  ?  since 
the  greater  the  zeal  wherewith  a  study  is  pursued,  so  much 
the  greater  is  the  teacher's  influence  on  the  taught ;  and  since 
experience  shows  that  when  the  work  of  education  has  been 
neglected  by  schools  and  universities,  such  neglect  has  not 
been  caused  by  any  absorption  in  abstract  studies,  but  by 
mere  dullness  and  self-indulgence,  as  fatal  to  study  as  they 
can  be  to  education. 

The  various  utilities  of  a  knowledge  of  the  Roman  Law  fall 
into  two  classes :  those  which  connect  it  with  the  liberal 
studies  of  a  university,  and  specially  with  classical  philology, 
with  history,  and  with  ethics  ;  and  those  which  belong  rather 
to  the  faculty  of  law,  and  entitle  it  to  a  place  in  a  strictly 
professional  curriculum. 

Taking  the  former  of  these  heads  first,  there  is  no  more 
55 


866  INAUGURAL  LECTURE 

obvious  reason  for  pursuing  the  study  than  the  light  which  it 
throws  upon  Roman  history,  which  is,  it  can  hardly  be  too 
often  repeated,  substantially  the  foundation  of  all  modern 
European  history.  No  people  was  ever  so  thoroughly  per- 
meated by  legal  ideas  as  were  the  Romans ;  none  rated  the 
dignity  of  the  profession  so  high,  spent  so  much  pains  in  the 
elaboration  of  legal  rules,  and  formed,  let  it  be  added,  so 
worthy  a  conception  of  what  law  ought  to  be.  Hence  the 
whole  political  history  of  the  Roman  people  and  state  is  so 
involved  with  its  legal  institutions,  that  it  can  be  understood 
only  when  regarded  as  derived  from  and  conditioned  by  them. 
This  is  signally  true  not  only  of  the  regal  and  earlier  republi- 
can period — in  all  early  states  of  society,  legal  customs  do 
for  a  people  what  a  political  constitution  does  in  later  times, 
or,  in  other  words,  public  and  private  law  are  closely  inter- 
twined— it  is  true  also  of  the  republic  in  the  days  of  Sulla 
and  Julius  Caesar,  and  of  the  long  period  of  the  Empire. 
Most  of  the  constitutional  arrangements  of  the  Roman  state 
depended  upon  those  of  private  law,  and  many  of  the  gravest 
political  questions  turned  upon  legal  doctrines.  The  subject 
of  the  Agrarian  laws,  for  instance,  is  intimately  involved 
with  the  legal  conception  of  possession,  as  distinct  from 
ownership,  and  can  hardly  be  mastered  without  a  knowledge 
of  technical  theory.  The  structure  of  the  gens,  the  nature  of 
the  agnatic  tie  and  of  the  patria  potestas,  the  judicial  charac- 
ter of  the  chief  administrative  magistrates,  the  doctrine  of 
adoption — all  and  each  of  them  exerted  a  powerful  influence 
on  the  political  fortunes  of  Rome.  Adoption,  for  instance, 
became  from  time  to  time  under  the  Empire  the  means  of 
working  a  system  of  appointment  to  the  sovereign  power, 
which  could  show  the  merits  without  the  evils  of  hereditary 
succession.  I  forbear  to  dwell  on  the  number  of  historical 
incidents,  like  that  of  Virginia  and  Appius  Claudius,  or  of 
allusions  in  poetical  and  philosophical  writers,  such  as  those 
which  every  scholar  remembers  in  Horace,  Ovid,  Juvenal, 
and  most  of  all  in  Cicero,  which  only  a  knowledge  of  the 
civil  law  can  elucidate.  A  student  of  the  classics  need  not 
read  the  Corpus  Juris  merely  for  the  sake  of  understanding 


INAUGURAL  LECTURE  867 

these,  any  more  than  one  is  bound  to  read  Coke  or  Hale  for 
the  sake  of  better  seeing  the  point  of  the  numerous  legal 
phrases  in  Shakespeare.  Few  would  go  so  far  as  the  enthu- 
siastic civilian  who  maintained  that  every  divine  ought  to 
learn  Roman  law,  because  there  are  passages  in  the  New 
Testament  which  a  knowledge  of  it  serves  to  explain.  But, 
though  every  scholar  need  not,  some  scholars  certainly  ought ; 
for  there  is  much  in  the  literature,  and,  indeed,  in  the  lite- 
rary spirit  and  feeling  of  the  Romans,  which  is  due  to  legal 
influences,  and  which  can  be  fully  apprehended  and  ex- 
pounded by  those  only  who  have  made  themselves  familiar 
with  these  influences  in  their  source.  In  particular,  such 
study  is  necessary  in  order  to  appreciate  the  character  of  the 
Empire  in  its  relation  to  the  peoples  of  the  Mediterranean 
whom  it  embraced.  Rome's  great  gift  to  the  world  was  her  ju- 
risprudence ;  and  the  most  interesting  chapter  in  her  history  is 
that  which  traces,  coincidently  with  the  gradual  extension  of 
Roman  citizenship  and  Roman  law  to  the  subject  races,  the 
steady  amelioration  in  its  positive  rules,  and  its  development 
from  a  harsh  and  highly  technical  system  into  one  grounded 
on  principles  of  reason  and  justice,  principles  which  are  in- 
deed common  to  all  civilized  peoples,  but  which  the  Roman 
jurists  were  the  first  to  expound  and  apply.  To  this  great 
work  was  devoted,  from  the  time  of  Augustus  onwards,  nearly 
all  the  genius  and  labour,  not  of  Rome  merely  but  of  the 
Roman  world,  which  was  not  expended  on  abstract  specula- 
tion ;  and  it  is  more  than  an  accident  that  long  after  the  lan- 
guage of  Virgil  and  Cicero  had  become  debased  in  the  hands 
of  florid  rhetoricians  and  soulless  versifiers,  its  purity  and  its 
nervous  precision  were  preserved  in  the  hands  of  men  like 
Papinian  and  Modestinus. 

A  second  utility  which  may  be  claimed  for  our  study,  is  its 
bearing  upon  the  history  of  mediaeval  and  modern  thought. 
When  the  Western  Empire  perished  amidst  the  storms  of  the 
fifth  century,  its  law  did  not  perish  with  it,  but  remained 
a  chief  factor  in  European  history,  more  widely,  although 
less  directly,  influential.  The  barbarian  conquerors,  who 
brought  with  them  only  the  rude  customs  by  which  they  had 


868  I \AUOURAL  LECTURE 

lived  in  their  native  forests,  soon  felt  the  need  of  a  regular 
legal  system,  and  were  glad  to  recognize  that  which  they 
found  subsisting.  They  allowed  their  subjects,  the  Latin- 
speaking  provincials,  to  use  it ;  in  some  countries  they  came 
to  use  it  themselves  ;  parts  of  it  were  collected  and  published 
in  such  compilations  as  the  Breviarium  of  the  West  Gothic 
Alarich  the  Second  and  the  Lex  Romana  Burgundionum.  At 
the  close  of  the  Dark  Ages,  the  study  of  the  original  texts 
revived,  first  in  Italy,  then  in  France,  England,  and  Spain. 
Schools  of  law  arose  all  over  Europe.  Immense  pains  were 
spent  on  the  interpretation  of  the  Digest,  and  it  became 
thenceforth,  for  many  generations,  the  foundation  of  the  edu- 
cation and  a  principal  part  of  the  knowledge  of  every  lawyer 
and  publicist.  As  the  mighty  fabric  of  ecclesiastical  power 
grew  up,  it  created  with  the  help  of  Roman  materials  its  own 
body  of  laws,  varied  of  course  by  the  nature  of  the  subjects, 
and  coloured  by  religious  ideas,  but  substantially  Roman 
after  all.  In  this,  as  in  so  much  else,  the  Papacy  was,  to  use 
the  forcible  expression  of  Hobbes,  '  the  ghost  of  the  old  Em- 
pire, sitting  on  its  tomb  and  ruling  in  its  name.'  And  thus, 
in  the  hands  of  the  very  ecclesiastics  who  forbade  its  study, 
as  hostile  to  their  own  pretensions  and  favourable  to  those  of 
their  antagonist,  the  Emperor,  the  doctrines  of  the  Civil  Law 
obtained  a  wider  range  than  ever  before.  As  its  continued 
existence  was  one  chief  cause  of  the  fantastic  belief  in  the 
continued  life  of  the  Roman  Empire,  so  that  very  belief 
became  in  turn  the  cause  of  its  ultimate  reception,  in  Ger- 
many, where  it  had  not  prevailed,  no  less  than  in  Italy, 
where  it  had  prevailed  continuously,  as  effective  and  binding 
law.  Being  studied  by  all  the  educated  men,  the  poets,  the 
philosophers,  the  administrators  of  the  Middle  Ages,  it 
worked  itself  by  degrees  into  the  thought  of  Christendom, 
losing  the  traces  of  its  origin,  as  it  became  part  of  the  com- 
mon property  of  the  world.  A  knowledge,  therefore,  of  what 
it  was,  and  of  how  it  influenced  mankind,  helps  to  explain 
much  which  might  otherwise  have  remained  obscure  in  the 
literature  of  the  Middle  Ages  and  the  Renaissance — much 
whose  bearing  a  modern  finds  it  hard  to  grasp,  just  because 


INAUGURAL   LECTURE  869 

law  holds  a  different  place  in  his  conceptions,  and  because 
he  does  not  realize  the  power  it  exerted  over  untrained  and 
uncritical  minds.  Theology  is  an  instance,  but  by  no  means 
the  only  instance,  of  a  branch  of  inquiry  over  which  legal 
notions  once  exercised  a  sway  they  have  now  lost. 

The  Middle  Ages  had  received  from  antiquity,  besides  the 
Scriptures,  only  three  bodies  of  literature  containing  sys- 
tematized thought — the  Church  Fathers,  the  philosophy  of 
Aristotle,  known  through  translations,  and  the  Roman  law. 
The  last  counted  for  less  than  the  two  former  in  moulding 
ideas.  But  it  counted  for  a  great  deal. 

The  history  of  law  and  of  the  evolution  of  legal  concep- 
tions, although  in  one  aspect  a  professional  subject,  may  also 
claim  to  be  regarded  as  a  branch  of  general  academical  study. 
Within  the  last  few  years,  the  application  to  it  of  the  com- 
parative method  of  inquiry  has  given  it  a  new  significance 
and  interest,  has  enabled  it  to  teach  us  much  respecting  the 
structure  of  primitive  society,  and  has  made  it  the  means  of 
illustrating  many  curious  phenomena  in  the  philosophy  and 
politics  of  more  recent  times.  Now  to  the  student  of  legal 
history  a  knowledge  of  Roman  Law  is  indispensable :  first, 
because  it  was  an  independent  system,  uninfluenced  by  any 
preceding  one,  save  to  some  slight  extent  by  the  customs  of 
Greek  cities,  whereas  all  subsequent  European  systems  have 
been  influenced  by  it ;  and  secondly,  because  it  alone  pre- 
sents an  uninterrupted  continuity  of  development,  stretching 
over  ten  centuries  from  the  Twelve  Tables  to  Justinian,  and 
later  still  through  the  dynasties  of  Constantinople.  No  sud- 
den intrusion  of  a  new  element,  like  that  caused  in  England 
by  the  Norman  Conquest,  nor  even  the  internal  strife  which 
altered  the  form  of  the  Roman  state,  disturbed  that  equable 
and  self-consistent  expansion  and  amendment  of  the  laws  of 
Rome,  which  the  widening  relations  of  the  city,  as  a  com- 
mercial, a  conquering,  a  world-embracing  community,  made 
necessary.  Legislative  power  passed  from  the  patrician 
curies  to  the  popular  Assemblies  of  the  nation,  from  the 
Assemblies  to  the  Senate  and  the  Emperor,  but  the  conduct 
of  legislation  remained  in  the  hands  of  an  educated  profes- 


870  INAUGURAL  LECTURB 

sion,  and  the  harmonious  evolution  of  principles  was  not  in- 
terrupted. Nearly  all  the  phenomena  which  the  history  of 
law  in  other  countries  presents,  find  their  parallel  and  expla- 
nation in  the  history  of  its  growth  at  Rome  :  nor  is  the  study 
without  a  practical  value  for  the  modern  legislator.  The 
nature  and  limits  of  the  jurisdiction  of  our  own  Court  of 
Chancery  are  better  understood  when  compared  and  con- 
trasted with  the  functions  exercised  by  the  Praetor  as  expo- 
nent of  the  ius  gentium.  The  codification  of  Justinian  has 
been  constantly  cited,  and  occasionally  examined,  in  recent 
discussions  respecting  the  propriety  and  the  methods  of  digest- 
ing and  codifying  English  law. 

Assuming,  without  further  argument,  the  claims  of  the  Civil 
Law  to  be  recognized  among  the  general  liberal  studies  of 
the  University,  I  may  proceed  to  consider  its  special  utility 
to  the  lawyer,  and  the  reasons  for  giving  it  a  place  among  the 
studies  of  the  legal  faculty.  Some  zeal  has  of  late  been 
shown  for  the  revival  of  such  studies  in  England  and  in 
Oxford;  and  it  will  be  generally  admitted  that  young  lawyers 
ought  to  be  more  regularly  instructed  in  the  science  and  art 
of  their  profession  than  they  are  now ;  that  much  of  this  in- 
struction may  be,  and  ought  to  be,  given  at  the  University ; 
and  that,  apart  altogether  from  the  service  to  be  rendered  by 
teaching,  it  would  be  a  gain  to  the  country  if  law  were  culti- 
vated and  written  upon  at  the  Universities,  in  the  same  philo- 
sophical spirit,  and  with  the  same  systematic  fullness,  as  in 
the  schools  of  Germany.  There  a  great  writer  is  often  also 
a  great  teacher.  Such  were  Savigny  and  Thibaut ;  such  was 
that  illustrious  man  whom  Heidelberg  lost  five  months  ago  l 
— a  man  whose  learning  was  so  vast  and  well-digested,  whose 
expositions  of  law  were  so  penetrating  and  luminous,  so 
philosophical  in  method,  so  eloquent  in  language,  so  ani- 
mated in  delivery,  that  to  have  listened  to  him  was  to  have 
gained  a  new  conception  of  the  power  of  oral  teaching. 

An  obvious  ground  for  cultivating  it,  and  one  likely  to  have 
weight  with  the  practising  lawyer,  is  the  immense  influence 
it  has  exerted  on  the  jurisprudence  of  modern  Europe.  As 

1  Dr.  K.  A.  von  Vangerow. 


I  \AUGUKAL  LECTURE  871 

respects  England,  this  influence  is  matter  rather  of  anti- 
quarian interest  than  of  practical  utility.  Much  of  our  law, 
especially  of  our  mercantile  law,  and  of  that  which  is  admi- 
nistered in  courts  of  equity,  may  indeed  be  traced  to  a  Roman 
origin ;  while  the  Court  of  Admiralty,  and  even  to  some  ex- 
tent the  probate  and  matrimonial  Courts  which  have  now 
replaced  the  ancient  ecclesiastical  tribunals,  owe  a  more 
direct  allegiance  to  the  imperial  jurisprudence.  In  the 
words  of  Lord  Chief  Justice  Holt,  '  Inasmuch  as  the  laws  of 
all  nations  are  doubtless  raised  out  of  the  ruins  of  the  Civil 
I>aw,  as  all  governments  are  sprung  out  of  the  Roman  Empire, 
it  must  be  owned  that  the  principles  of  our  law  are  borrowed 
from  the  Civil  Law,  and  therefore  grounded  upon  the  same 
reason  in  many  things  V  But  the  bulk  of  English  law  is  so 
vast,  requiring  so  much  labour  to  master  it,  and  that  which 
it  has  borrowed  from  other  systems  is  now  so  thoroughly  trans- 
formed and  Anglicized,  that  one  cannot  honestly  advise  the 
student,  on  the  mere  ground  that  in  some  departments  it  has 
drawn  freely  from  Roman  sources,  to  spend  time  in  examin- 
ing those  sources,  instead  of  going  straight  to  English  text- 
books. It  is  not  so  much  because  English  law  is  like  Roman, 
but  because  it  is  unlike,  that  the  study  is  really  to  be  recom- 
mended. Similarities,  whatever  their  historical  origin,  are 
usually  found  to  rest  on  that  wish  to  follow  reason  and  to 
secure  what  is  practically  convenient,  which  have  moulded 
the  rules  of  all  highly  finished  systems.  They  need  no  fur- 
ther explanation.  But  dissimilarities  suggest  difficulties. 
Inquiry  is  provoked ;  reflection  is  stimulated ;  ideas  emerge 
which  may  prove  fruitful. 

A  lawyer  who  loves  and  appreciates  his  subject  will  hardly 
be  content  without  knowing  something  of  the  rules  and  doc- 
trines which  prevail  in  other  nations;  and  a  man  in  brisk 
practice  will  find  many  occasions  in  which  a  knowledge  of 
foreign  or  colonial  law  is  of  great  value  to  him.  Now  in  the 
acquisition  of  almost  any  foreign  system  of  law,  a  knowledge 
of  the  outlines  of  the  Civil  Law  renders  the  same  kind  of  ser- 
vice which  a  knowledge  of  Latin  renders  in  the  acquisition 

1  12  Mod.  482. 


872  I  \AUOURAL  LECTURE 

of  one  of  the  Romance  languages ;  and  just  as  one  would  ad- 
vise a  man  who  desired  to  learn  French  Spanish  and  Italian 
to  begin  by  learning  Latin,  so  the  shortest  way  to  know  some- 
thing of  German  Dutch  and  French  law  is  to  study  the  prin- 
ciples of  the  Civil  Law,  which  are  a  master-key  to  that  of  all 
these  countries.  The  House  of  Lords  in  Scotch  appeal  cases, 
the  Privy  Council  in  appeals  from  many  of  our  colonies,  as, 
for  instance,  from  Lower  Canada,  British  Guiana,  the  Cape, 
and  Mauritius,  administer  a  modified  Roman  law.  And  as 
the  doctrines  of  international  law  are  in  their  source  Roman, 
they  can  be  best  understood  and  applied  by  one  who  is  fami- 
liar with  them  in  their  original  form  as  drawn  from  that  im- 
perial law  which,  when  they  first  sprang  up,  was  still  dimly 
conceived  of  as  extending  its  authority  over  all  the  states  of 
Christendom. 

I  have  placed  last  what  I  venture  to  believe  to  be  the  weighti- 
est practical  reason  for  pursuing  this  study,  although,  at  the 
same  time,  that  reason  which  it  is  most  difficult  to  expound 
and  establish — its  educational  and  scientific  worth  as  forming 
and  strengthening  those  habits  of  mind  in  the  possession  of 
which  a  lawyer's  excellence  consists.  In  proof  of  this  worth 
it  is  not  sufficient  to  cite  the  examples  of  Germany,  France, 
and  Scotland,  where  the  education  of  a  legal  practitioner  is 
based  upon  the  civil  law;  for  the  Corpus  Juris  is  in  all  these 
countries  the  foundation  of  their  municipal  systems,  while  in 
Scotland  and  some  parts  of  Germany,  it  is  to  some  extent 
actually  still  in  force.  The  reason  which  we  in  England 
have  for  urging  that  the  study  of  Roman  law  should  precede 
and  accompany  that  of  the  law  of  our  own  country,  must  be 
sought  in  a  perception  of  the  defects,  certainly  obvious 
enough,  of  modern  English  jurisprudence.  Here  it  is  neces- 
sary to  distinguish  what  laymen,  and  even  lawyers,  have  often 
confounded — defects  of  substance  and  defects  of  form.  Now, 
in  point  of  substance,  the  English  law  is,  with  the  exception 
of  certain  provisions  of  the  law  of  real  property,  and  of  the 
law  relating  to  married  women — provisions  which  the  progress 
of  political  change  seems  likely  to  remove — no  whit  inferior 
to  any  other  body  of  law ;  almost  always  fair  and  reasonable, 


IX AUGURAL  LECTURE  873 

conformed  to  the  dictates  of  good  sense,  reflecting  worthily 
the  free  and  flexible  spirit  of  our  political  institutions,  and 
offering  as  few  opportunities  as  may  be  to  fraud  and  oppres- 
sion. Its  processes  are  of  course  technical,  perhaps  still  too 
technical,  and  they  are  sometimes  needlessly  circuitous ' ; 
but,  as  a  technical  hardship  may  usually  be  met  by  a  techni- 
cal remedy,  substantial  justice  seldom  fails  to  be  attained. 
With  some  cumbrousness,  our  procedure  has  the  merit  of 
variety  and  flexibility;  and  it  is  our  especial  honour  to  have 
worked  out  the  method  of  trial  by  jury  with  a  completeness 
unrivalled  elsewhere,  and  to  have  alone  (for  in  this,  as  in 
many  other  respects,  Americans  may  practically  be  reckoned 
as  Englishmen)  succeeded  in  applying  it  to  large  classes  of 
civil  causes.  But  when  English  law  is  regarded  in  its  formal 
and  scientific  aspect,  as  a  system,  the  opinion  formed  of  it 
must  be  very  different.  It  is,  in  fact,  not  so  much  a  system 
as  a  huge  mass  of  isolated  positive  rules ;  some  laid  down, 
with  little  statement  of  a  reason,  for  the  sake  of  meeting  a 
1  (articular  case;  some  deduced  by  the  judges,  though  in 
a  rather  occasional  and  fragmentary  way,  from  principles 
which  were  at  first  dimly  and  incompletely  apprehended; 
some,  again,  created  by  statutes  which  have,  especially  of 
late  years,  cut  across  these  pre-existing  principles  and  rules 
in  an  irregular  and  reckless  way.  Just  as  lines  of  railway 
have  been  driven  through  modern  London  without  regard  to 
the  old  arrangement  of  the  thoroughfares,  and  have  crossed 
and  recrossed  streets  and  squares,  effacing  parts  of  them  till 
perhaps  only  a  house  or  two  is  left  standing,  so  Acts  of  Par- 
liament, drawn  up  to  meet  the  exigency  of  the  moment,  have 
paid  no  respect  to  the  symmetry,  such  as  it  was,  of  the  com- 
mon law,  and,  instead  of  attempting  to  mould  and  recon- 
struct it,  have  laid  down  new  positive  rules  which  infringe 
upon,  or  almost  wholly  destroy,  its  ancient  principles,  by 
removing  from  their  operation  large  and  heterogeneous  classes 
of  cases.  The  effect  of  this  has  been  to  make  the  old  prin- 
ciple no  longer  really  a  principle,  but  a  positive  rule  in  the 
cases  not  affected  by  the  statute ;  and  thus,  as  the  number  of 

1  This  defect  was  removed  by  the  Judicature  Act  of  187^. 


874  INAUGURAL  LECTURE 

enactments  and  positive  rules  increases,  the  value  of  princi- 
ples declines,  and  the  confusion  grows  every  year  worse  con- 
founded. So  it  comes,  owing  partly  to  the  way  they  have 
been  produced,  and  partly  to  the  way  they  have  been 
amended,  that  the  rules  of  our  law  are  an  aggregate  of  dicta 
on  points  of  detail — dicta  which  with  difficulty  can  be  re- 
duced to  a  reasonable  number  of  leading  doctrines.  For  not 
only  do  the  exceptions  to  a  rule  frequently  outnumber  the 
cases  which  it  governs,  but  it  often  happens  that  judicial 
decisions,  or  the  words  of  an  Act,  have  provided  for  many 
cases  which  naturally  fall  under  and  suggest  a  general  prin- 
ciple, but  have  never  ventured  to  enunciate  the  principle 
itself,  which  cannot  therefore  be  laid  down  as  being  part  of 
the  binding  law.  Hence  the  tendency  of  an  English  prac- 
titioner is  by  no  means  towards  a  search  for  principles  :  in- 
deed, he  becomes  absolutely  averse  to  them ;  and  the  charac- 
teristic type  of  excellence  which  the  profession  has  delighted 
to  honour  is  the  so-called  '  case  lawyer,'  who  bears  in  his 
memory  a  great  stock  of  particular  decisions,  from  which  he 
can,  as  occasions  arise,  select  that  one  whose  facts  most  nearly 
approach  the  individual  case  upon  which  he  is  required  to 
argue  or  advise.  Such  a  practitioner  may  acquire  a  sort  of 
instinct  which  will  usually  keep  him  right,  but  may  be  unable 
to  state  the  general  doctrines  on  which  the  solution  of  a  class 
of  cases  depends. 

The  strain  thus  imposed  on  the  memory  is  such  that  many 
persons  succeed  in  mastering  only  some  special  department 
of  the  law;  and  even  our  most  eminent  counsel,  men  of  the 
greatest  powers  of  mind,  may  be  heard  to  confess  that  they 
do  not  pretend  to  know  our  law  as  a  whole,  but  must  rest 
content  with  knowing  where  to  find  what  they  want  as  they 
may  happen  to  want  it.  For  the  same  reason  our  text-books 
are,  with  few  exceptions,  not  systematic  expositions  of  law, 
but  mere  heaps  of  cases  from  which,  by  the  aid  of  an  index, 
the  practitioner  must  try  to  pick  out  a  few  resembling,  or,  as 
lawyers  say,  '  on  all-fours  with,'  that  set  of  circumstances 
whose  legal  character  he  is  called  upon  to  determine.  They 
are,  therefore,  unfit  to  be  put  into  the  hands  of  a  beginner. 


INAUGURAL    LAV 77  RK  S7r> 

The  result  of  all  this  is  to  make  the  process  of  learning 
English  law  very  slow  and  somewhat  distasteful.  Certain 
persons  indeed  there  are  who,  having  no  feeling  for  sym- 
metry, are  willing  to  pick  up  their  knowledge  by  scraps  and 
morsels,  and  who,  so  to  speak,  roll  themselves  about  in  cases 
in  the  hope  that  bits  of  legal  knowledge  will  stick.  But 
minds  of  finer  temper,  minds  trained  by  their  University 
studies  to  ask  for  a  reason,  seek  out  a  principle,  group  things 
together  under  their  natural  relations,  are  disheartened  by 
this  chaotic  state  of  matters,  make  slow  progress  in  the  study, 
find  themselves  required  to  unlearn  their  best  mental  habits, 
and  sometimes  abandon  the  profession  in  disgust.  I  remem- 
ber having  been  told  by  a  very  distinguished  and  able  mem- 
ber of  this  University ',  that  when  he  began  to  read  in  a  con- 
veyancer's chambers  he  found  his  previous  classical  and 
philosophical  training,  so  far  from  helping  him,  prove  a  posi- 
tive hindrance  and  stumbling-block.  This  was  seen  to  be  an 
evil  so  long  ago  as  Sir  William  Blackstone's  time.  In  his 
introductory  lecture  as  Vinerian  Professor,  delivered  here  in 
A.D.  1758,  he  says  : — 

4  We  may  appeal  to  the  experience  of  every  sensible  lawyer  whether 
anything  can  be  more  hazardous  or  discouraging  than  the  usual  entrance 
on  the  study  of  the  law.  A  raw  and  unexperienced  youth,  in  the  most 
dangerous  season  of  life,  is  transplanted  on  a  sudden  into  the  midst  of 
allurements  to  pleasure,  without  any  restraint  or  check  but  what  his  own 
prudence  can  suggest ;  with  no  public  direction  in  what  course  to  pursue 
his  inquiries  ;  no  private  assistance  to  remove  the  distresses  and  difficul- 
ties which  will  always  embarrass  a  beginner.  In  this  situation  he  is  ex- 
pected to  sequester  himself  from  the  world,  and  by  a  tedious  lonely  pro- 
cess to  extract  the  theory  of  law  from  a  mass  of  undigested  learning  ;  or 
else,  by  an  assiduous  attendance  on  the  courts,  to  pick  up  theory  and 
practice  together,  sufficient  to  qualify  him  for  the  ordinary  run  of  busi- 
ness. How  little,  therefore,  is  it  to  be  wondered  at,  when  we  hear  of  so 
frequent  miscarriages  ;  that  so  many  gentlemen  of  bright  imaginations 
grow  weary  of  so  unpromising  a  search,  and  addict  themselves  wholly  to 
amusements,  or  other  less  innocent  pursuits  ;  and  that  so  many  persons 
of  moderate  capacity  confuse  themselves  at  first  setting  out,  and  continue 
ever  dark  and  puzzled  during  the  remainder  of  their  lives. 

'  The  evident  want  of  some  assistance  in  the  rudiments  of  legal  know- 
ledge has  given  birth  to  a  practice  which,  if  ever  it  had  grown  to  be  gene- 
1  Now  dooi)  one  of  the  Law  Lords  sitting  in  the  House  of  Lords. 


876  INAUGURAL  LECTURE 

ral,  must  have  proved  of  extremely  pernicious  consequence.  I  mean 
the  custom,  by  some  so  very  warmly  recommended,  of  dropping  all  libe- 
ral education,  as  of  no  use  to  students  in  the  law,  and  placing  them  in 
its  stead  at  the  desk  of  some  skilful  attorney,  in  order  to  initiate  them 
early  in  all  the  depths  of  practice,  and  render  them  more  dexterous  in 
the  mechanical  part  of  business.  A  lawyer  thus  educated  to  the  bar  will 
find  that  he  has  begun  at  the  wrong  end.  If  practice  be  the  whole  he  is 
taught,  practice  must  also  be  the  whole  he  will  ever  know  ;  if  he  be  un- 
instructed  in  the  elements  and  first  principles  upon  which  the  rule  of 
practice  is  founded,  the  least  variation  from  established  precedents  will 
totally  distract  and  bewilder  him  :  ita  lex  scripta  est  is  the  utmost  his 
knowledge  will  arrive  at  ;  he  must  never  aspire  to  prove,  and  seldom 
expect  to  comprehend,  any  arguments  drawn  a  priori  from  the  spirit  of 
the  laws  and  the  natural  foundations  of  justice1.' 

Blackstone  is  here  founding,  on  the  unfortunate  results  of 
the  usage  of  his  own  time,  an  argument  for  making  the  future 
barrister  begin  with  a  systematic  theoretical  study  of  English 
law.  His  reasoning  will  be  generally  felt  to  be  sound,  but 
it  does  not  exclude  the  further  improvement  of  giving  the 
learner  some  knowledge  of  the  principles  of  Roman  law 
before  he  addresses  himself  to  English.  I  shall  state  some 
grounds  for  thinking  that  what  might  appear  the  longest  way 
round,  through  Roman  law,  may  really  be  the  shortest  way  to 
the  scientific  mastery  of  our  own. 

It  is  clear  that  no  knowledge  of  the  Roman  system  can  be 
a  substitute  for  a  knowledge  of  the  English ;  but  the  difficul- 
ties which  the  English  presents  to  a  beginner  are  such  as  to 
suggest  the  utility  of  a  preliminary  legal  training  which  may 
render  it  more  comprehensible  and  less  distasteful.  Now, 
the  conspicuous  merit  of  Roman  law  is,  that  it  is  clear  and 
intelligible.  It  is  a  system  instead  of  a  mere  congeries  of 
rules  and  dicta,  a  system  which,  although  it  cannot  be  ex- 
hausted by  the  labour  of  a  powerful  intellect  during  a  long 
life,  may  be  mastered  in  its  outline  and  leading  principles 
in  six  or  eight  months  of  properly-directed  industry.  A 
philosophical  mind  is  attracted  by  its  symmetry;  the  taste  is 

1  Although  it  is  the  custom  of  placing  a  youth  (untrained  in  theory)  in  an  attor- 
ney's office  to  learn  practice  which  Blackstone  is  here  condemning,  the  spirit  of  his 
concluding'remarks  is  almost  equally  applicable  to  the  present  usage  of  entering  a 
conveyancer's  or  pleader's  chambers  before  one  has  gained  any  systematic  know- 
ledge (or  indeed  any  knowledge  whatever)  of  the  law. 


f\M  (II  HAL    U-;<-TI  A'/. 

pleased  by  the  graceful  propriety  of  its  diction;  the  learner's 
interest  is  kept  awake  by  watching  the  skill  and  subtlety 
wherewith  its  technical  rules  are  manipulated  and  kept  in 
harmony  with  the  dictates  of  equity  and  common  sense.  The 
number  of  dominant  conceptions  which  it  is  necessary  to 
acquire  is  so  small,  and  these  conceptions  themselves  so 
rational  and,  so  to  speak,  natural,  that  it  does  not  take  long 
to  obtain  a  general  view  of  the  whole,  and  discern  the  har- 
monious relation  of  its  parts.  The  student  finds  the  ethical 
and  historical  knowledge  he  has  already  acquired  serviceable 
in  this  new  field.  He  learns  to  regard  law  as  a  science, 
closely  related  to  ethics,  and  to  be  dealt  with  in  a  philo- 
sophical spirit.  And  thus,  when  he  passes  on  to  the  study  of 
our  English  law,  he  finds  himself  the  better  able  to  grapple 
with  its  bulk  and  its  want  of  arrangement,  since  he  has 
already  mastered  the  leading  conceptions  of  jurisprudence  in 
their  concrete  (which  is,  after  all,  their  only  serviceable) 
form,  and  knows  how  to  arrange  under  appropriate  heads  the 
positive  rules  which  it  will  be  his  business  to  remember  and 
apply.  So  valuable  is  this  experience,  that  I  dare  affirm  that 
a  youth  who  spends  some  eight  months  in  the  study  of  the 
Civil  Law,  and  then  proceeds  to  that  of  English  law,  will, 
when  at  the  end  of  three  years  he  is  measured  against  his 
contemporary  who  has  given  exactly  the  same  amount  of  time 
and  pains  to  English  law  alone,  prove  to  be  not  only  a  better 
jurist,  but  as  good  an  English  lawyer.  This  is  the  rather  so, 
as  that  part  of  English  law  which  the  Roman  law  least  helps 
to  elucidate  is  now  of  much  slighter  importance  than  formerly 
— I  mean  the  feudal  law  of  land.  A  change  has  passed  upon 
us,  somewhat  similar  to  that  which  Cicero  saw  passing  at 
Rome.  In  his  youth,  he  tells  us,  he  like  other  pupils  of  the 
great  pru denies  was  required  to  learn  by  heart  the  contents 
of  the  Twelve  Tables,  whereas  in  his  later  days  it  was  the 
Praetor's  edict  that  formed  the  basis  of  legal  training.  So 
Coke  upon  Littleton,  which  thirty  years  ago  was  held  forth 
as  a  sort  of  Bible  to  the  unfledged  lawyer,  is  now  seldom  in 
his  hands ;  his  time  is  given  rather  to  commercial  law  and  to 
the  doctrine  of  trusts  and  powers,  and  the  principles  govern- 


8io  IX AUGURAL  LECTURE 

ing  incorporated  companies  and  the  relations  of  directors  to 
intending  investors  and  to  shareholders — subjects  to  which 
the  leading  principles  of  the  Roman  law  are  more  capable  of 
being  profitably  applied. 

It  is  not,  however,  merely  as  an  introduction  to  his  pro- 
fessional studies  that  the  English  lawyer  will  find  the  study 
of  Roman  law  profitable  :  if  rightly  used  it  will  be  a  guide 
and  a  help  throughout  his  whole  career.  More  than  anything 
else,  it  will  deliver  him  from  the  tendency  to  deal  with  law 
in  a  desultory  method  and  an  empirical  spirit,  by  displaying 
to  him  fixed  and  general  principles  underlying  the  multitude 
of  details.  It  will  do  for  him  what  the  knowledge  of  some 
foreign  language  does  for  the  grammarian  and  the  logician, 
in  the  way  of  freeing  him  from  that  bondage  of  words  to 
which  most  men  are  all  their  lives  subject.  Setting  him  to 
compare  the  terms  and  conceptions  of  another  law  with  those 
of  his  own,  it  will  enable  him  to  criticize  the  latter  from  an 
independent  point  of  view,  and  so  deliver  him  from  the  dan- 
ger, common  in  all  professions  and  to  all  systems,  of  mis- 
taking the  accidental  for  the  essential,  of  exalting  mere 
technical  rules  and  phrases  into  necessary  and  permanent 
distinctions.  Further,  it  may  do  much  to  supply,  from  its 
choice  and  abundant  stores,  the  defects  in  English  legal  ter- 
minology. We  are  especially  ill  provided  with  terms  fitted 
to  convey  the  main  conceptions  of  universal  jurisprudence; 
and  we  find  the  want  a  serious  impediment,  not  only  to  legal 
exposition  and  the  conduct  of  legal  argument,  but  also,  as 
has  been  remarked  by  a  distinguished  jurist,  now  one  of  the 
ornaments  of  this  University1,  in  the  work  of  practical  legis- 
lation. The  terminology  of  the  Romans  was  exact  as  well  as 
copious;  and  it  has  been  greatly  amplified  and  improved  by 
the  labours  of  modern  civilians.  As  it  is,  we  often  draw  upon 
the  Roman  vocabulary,  but  what  we  borrow  we  are  apt  to  use 
loosely,  and  in  a  sense  different  from  that  of  the  old  Romans 
or  of  their  modern  commentators ;  whence  further  confusion. 

There  are  two  capacities  or  mental  habits  in  which  the  dis- 
tinctive excellence  of  a  legal  intellect  chiefly  consists — the 

1  Sir  H.  S.  Maine. 


/ \AUGURAL  LECTUKK  879 

power  of  applying  general  principles  to  concrete  cases,  and 
the  power  of  enunciating  a  legal  proposition  with  clearness 
and  precision.  Towards  the  formation  of  both  of  these  the 
writings  of  the  Roman  jurists  supply  more  aid  than  do  those 
of  their  modern  English  rivals.  The  conspicuous  merit  of 
the  Roman  lawyer  was  his  command  of  principles,  and  the 
skill  with  which  he  manipulated  the  rules  of  an  originally 
very  technical  system,  so  as,  without  any  loss  of  consistency 
or  '  elegance,'  to  avoid  the  inconveniences  which  an  adhe- 
rence to  technical  strictness  must  often  produce.  As  Savigny 
puts  it,  '  In  our  science,  all  results  depend  on  the  possession 
of  leading  principles,  and  it  is  precisely  upon  this  possession 
that  the  greatness  of  the  Roman  jurists  is  based.  The  con- 
ceptions and  maxims  of  their  science  appear  to  them  not  as 
if  created  by  their  own  will;  they  are  actual  beings,  with 
whose  existence  and  genealogy  they  have  become  acquainted 
from  long  and  familiar  intercourse.  Hence  their  whole 
course  of  proceeding  has  a  certainty  which  is  found  nowhere 
else  out  of  mathematics,  and  it  is  no  exaggeration  to  say  that 
they  calculate  with  their  ideas.  This  method  is  nowise  the 
exclusive  property  of  one  or  a  few  great  authors  :  rather  is  it 
the  common  inheritance  of  all ;  and  although  the  power  of 
applying  it  is  divided  among  them  in  very  unequal  measure, 
still  the  method  itself  is  in  all  of  them  the  same.  ...  If 
they  have  a  case  to  decide  upon,  they  set  out  from  the  most 
vivid  perception  of  it,  and  we  see  before  our  eyes  the  origin 
and  development  of  the  whole  affair  in  all  its  phases.  It  is 
as  if  this  particular  case  was  the  starting-point  whence  the 
whole  science  was  to  be  explored.  Hence  with  them  theory 
and  practice  are  really  not  distinct;  their  theory  is  so  tho- 
roughly worked  out  as  to  be  fit  for  immediate  application,  and 
their  practice  is  uniformly  ennobled  by  scientific  treatment. 
In  every  principle  they  see  an  instance  of  its  application;  in 
every  case,  the  rule  whereby  it  is  determined :  and  in  the 
facility  with  which  they  pass  from  the  universal  to  the  par- 
ticular, and  the  particular  to  the  universal,  their  mastery  is 
incontestable  V 

1  Vom  Berufunserer  Zeit  fur  die  Gesetzgebung  und  Rechtrwistenschaft^  c.  4. 


880  INAUGURAL  LECTURE 

Now  every  legal  opinion,  argument,  and  judgement  chiefly 
turns  on  the  application  of  known  principles  or  rules  of  law 
to  facts ;  and  this  either  by  way  of  fitting  the  law  to  the  facts 
— that  is,  of  expounding  the  nature,  meaning,  and  limits  of 
a  principle  in  such  wise  as  to  make  it  appear  to  cover  the 
facts  proved ;  or  conversely  by  way  of  fitting  the  facts  to  the 
law,  that  is  to  say,  of  setting  forth  the  rule  or  principle,  as 
admitted,  and  then  of  so  stating  the  substantial  result  of  the 
facts  taken  as  a  whole,  as  to  make  it  appear  that  the  case 
falls  under  this  rule  as  already  given.  In  this  process  the 
Roman  jurists  shone  preeminent.  English  judges,  certainly 
from  no  want  of  learning  or  acumen,  but  rather  from  a  sort  of 
caution,  or  from  a  traditional  reluctance  to  deliver  an  opinion 
going  any  further  than  may  be  necessary,  have  generally  been 
unwilling  to  formulate  principles,  preferring,  where  they 
could,  to  dilate  on  the  special  circumstances  of  the  case,  and 
base  their  decision  thereon ;  and  the  consequence  is  to  be 
seen  in  the  prolixity  of  our  Reports,  and  the  uncertainty  of 
much  of  the  law  contained  in  them.  The  labour  of  reading 
English  cases  is  great  in  proportion  to  the  quantity  of  posi- 
tive law  they  embody;  and  their  philosophical  worth  not 
commensurate  with  the  genius  and  industry  bestowed  upon 
them  by  both  bar  and  bench.  The  cases,  if  one  may  so  call 
them,  which  we  find  in  the  Roman  jurists  give  more  law  and 
more  real  intellectual  training  in  a  much  smaller  compass. 
They  are  often  imaginary,  invented  to  show  the  application 
of  a  rule,  and  are  therefore  short  and  clear,  enforcing  theii 
principle  with  a  directness  which  makes  it  easily  apprehended 
and  remembered.  In  reading  them  we  seem  to  learn  better 
than  anywhere  else  how  principles  should  be  dealt  with. 

In  the  matter  of  legal  expression  the  superiority  of  the 
Romans  is  scarcely  less  marked.  The  power  of  stating  a 
proposition  of  law  in  comprehensive  and  exact  terms,  wide 
enough  to  cover  all  cases  contemplated  and  yet  precise  enough 
to  exclude  cases  more  or  less  similar  to  which  the  rule  is  not 
intended  to  apply,  is  valuable  to  the  text-writer  and  quite 
indispensable  to  the  framer  of  statutes.  Unfortunately  it  is 
one  of  which  our  statute-book  bears  few  traces.  Now  the 


I \AUGURAL  LECTURE  881 

legal  language  of  the  Romans  is  a  model  of  terseness,  per- 
spicuity, and  precision,  and  from  i  study  of  it,  even  allowing 
for  the  difference  between  the  structure  of  the  two  languages, 
the  English  draftsman  may  derive  many  valuable  suggestions. 

Over  and  above  the  specific  benefits  enumerated,  it  must 
be  added  that  a  study  of  the  Roman  law  would  not  merely 
tend  to  produce,  but  must  necessarily  precede,  any  extended 
healthy  intercourse  between  our  jurists  and  those  of  the  rest 
of  Europe,  any  participation  by  us  in  the  general  advance- 
ment of  juridical  science.  *  England,'  said  an  eminent  con- 
tinental jurist,  surveying  the  progress  made  in  his  department, 
*  England  sleeps  for  ever '  :  and  she  sleeps  because  her 
lawyers  have  allowed  themselves  to  become  as  completely 
isolated  as  though  we  were  living  in  and  legislating  for  a 
planet  of  our  own.  Certainly,  when  one  remembers  how  in 
other  branches  of  inquiry  each  country  depends  upon  its 
neighbours,  how  meagre  would  be  our  scholarship,  our  ethics, 
our  history,  our  criticism — never  to  speak  of  medicine  and 
the  whole  circle  of  the  sciences  of  nature — if  in  each  of  these 
subjects  we  trusted  to  our  own  efforts  only — it  does  seem 
strange  that  in  the  matter  of  law  we  should  be  content  to 
draw  nothing  from  the  labours  of  other  nations.  As  the  facts 
law  deals  with  are  in  the  main  the  same  in  all  civilized  coun- 
tries, and  the  substance  of  its  leading  conceptions  virtually 
identical,  there  must  clearly  be  much  for  us  to  learn  from 
other  highly  cultivated  systems,  and  it  is  only  our  ignorance 
of  the  common  legal  vocabulary  of  Europe  that  keeps  us  from 
so  learning.  The  habit,  however,  has  grown  so  strong  that 
we  do  not  even  care  to  profit  by  the  experience  of  a  country 
which  speaks  our  own  legal  language — the  United  States — 
where  many  problems  have  been  handled  by  the  Courts  and 
many  experimento  have  been  tried  by  the  legislatures  which 
are  full  of  i  "struct! on  for  us  '. 

This  argument,  being  directed  to  show  that  the  study  of  the 
Civil  Law  will  help  to  make  English  law  more  of  a  system 
and  a  science  than  it  i:  now,  and  to  train  the  individual 

1  Cases  decided  in  the  United  Stales  are  more  frequently  cited  in  English  Courts 
now  (1901)  than  they  were  in  1871. 
56 


882  INAUGURAL  LECTURE 

lawyer  in  more  philosophical  habits  of  mind,  proceeds  upon 
the  assumption  that  law  ought  to  be  a  science  and  lawyers 
philosophical.  To  prove  the  truth  of  this  assumption  would 
involve  a  discussion  of  the  relations  of  theory  and  practice 
generally;  and  in  a  University,  at  least,  no  such  proof  will 
be  demanded.  Science,  like  wisdom,  is  justified  of  all  her 
children;  and  those  who,  in  the  teeth  of  what  we  have  seen 
during  the  last  eight  months  J,  persist  in  holding  theory  to  be 
a  hindrance  to  practice,  would,  quite  consistently,  refuse  to 
be  convinced  by  any  such  general  considerations  as  those 
which  determine  academical  opinion.  Without  entering, 
however,  on  this  higher  ground,  I  may  be  permitted  to  men- 
tion two  practical  reasons  for  desiring  to  see  our  law  treated 
as  an  organic  and  harmonized  system  of  rules.  One  of  these 
is  the  direct  gain  which  the  whole  community  would  derive 
from  a  simplification  of  its  form.  Owing  to  the  way  in  which 
English  statutes  are  drawn,  nearly  every  amendment  of  the 
law  makes  it  more  complicated  and  obscure  than  it  was 
before.  A  new  Act  seldom  repeals  a  preceding  Act  or  Acts 
on  the  same  subject  as  a  whole :  it  abolishes  some  of  their 
provisions,  incorporates  others,  and  modifies  the  rest.  In 
dealing  with  a  rule  of  the  common  law,  instead  of  expunging 
the  rule  altogether,  or  laying  down  a  new  principle  by  which 
it  is  to  be  controlled,  it  usually  establishes  a  series  of  excep- 
tions in  a  manner  so  seemingly  arbitrary  as  to  make  it  very 
difficult  to  determine,  when  a  new  case  arises,  whether  or  no 
it  was  within  the  contemplation  of  the  Act.  The  Married 
Women's  Property  Act  of  last  session  is  an  instance  in  point*. 
Similarly,  vast  branches  of  our  law,  such  as  that  which  relates 
to  public  health  and  to  the  regulation  of  mines  and  manufac- 
tures, are  suffered  to  remain  in  a  state  of  hopeless  confusion 
— Acts  fringed  with  decisions  piled  upon  other  Acts  and  their 
decisions,  till  it  becomes  impossible,  without  a  long  and 
painful  research,  to  say  what  is  law  and  what  is  not  *.  This 

1  The  reference  was  to  the  war,  just  ending  when  this  lecture  was  delivered, 
between  Germany  and  France. 

a  This  Act  caused  so  much  trouble  that  it  had  to  be  amended  and  the  law  recast 
by  the  Married  Women's  Property  Act  of  1876. 

3  A  marked  improvement  has,  however,  taken  place  since  the  establishment  of 


ISALUL  RAL  LECTURE  883 

wretched  state  of  things,  which  makes  a  resort  to  the  Courts 
far  more  costly,  and  its  issue  far  more  uncertain  than  it  need 
be,  though  partly  due  to  existing  parliamentary  arrangements, 
is  also  in  great  measure  due  to  the  want  of  that  feeling  for 
the  symmetry  and  simplicity  of  the  law  which  a  scientific 
conception  of  it  would  be  certain  to  produce  in  the  profes- 
sion. The  public,  which  feels  the  evil,  is  powerless  to 
remedy  it;  while  those  members  of  the  profession  who  have 
the  power  are  deterred  from  the  necessary  efforts,  not,  as  is 
commonly  supposed,  by  the  mean  notion  that  it  is  their  in- 
terest to  keep  their  art  a  mystery,  but  partly  by  long  habit, 
which  has  made  them  indifferent  to  the  beauty  of  order, 
partly  by  the  want  of  that  scientific  training  on  which  the 
success  of  amending  legislation  depends. 

The  second  benefit  is  the  reflex  effect  upon  the  legal  pro- 
fession of  a  higher  conception  of  the  studies  to  which  it  de- 
votes its  labours.  The  complaint  is  often  heard  that  men 
of  literary  culture  and  polished  taste  rise  more  seldom  than 
formerly  to  the  highest  places  at  the  bar  and  on  the  bench ; 
that  it  is  now  private  connexions  rather  than  the  finer  gifts  of 
intellect  and  character  which  open  the  path  to  professional 
success.  If  this  be  so,  it  is  surely  in  great  measure  because 
our  system  of  legal  education  gives  too  little  scope  to  these 
nobler  qualities,  and  turns  them  to  no  account  in  directing 
the  studies  of  the  aspirant.  The  life  of  a  lawyer,  tedious 
ana  distasteful  in  some  of  its  details,  would  be  more  enjoy- 
able if  his  occupation  called  out,  as  it  ought  to  do,  the  high- 
est faculties  of  his  mind;  and  the  tone  of  the  profession, 
which  will  sooner  or  later  be  threatened  here  by  the  tempta- 
tions which  have  begun  to  threaten  it  elsewhere  ',  will  be  best 
maintained  in  purity  by  a  sense  of  the  dignity  of  the  subject 
it  deals  with  as  a  department  of  philosophical  inquiry.  It  is 

the  office  of  the  Parliamentary  Counsel  a  few  years  ago.  Many  Bills,  however, 
including  all  those  brought  in  by  private  members,  do  not  pass  through  this  office, 
and  even  those  which  come  from  it  suffer  in  point  of  form  in  their  passage  through 
Parliament.  Since  1871,  much  has  been  done  in  the  way  of  consolidating  the  Sta- 
tute law.  See  Essay  XIV,  ante. 

1  The  reference  was  to  the  scandals  which  had  recently  arisen  in  some  of  the 
State  Courts  in  the  United  States.  These  have  now  (1901)  been  almost  entirely 
removed. 


ss4  I \ALGLKAL   LECTURE 

scarcely  possible  that  a  corrupt  administration  of  justice  can 
coexist  with  an  enthusiasm  for  the  abstract  propriety  and 
elegance  of  law  as  a  science,  such  as  existed  among  the  great 
jurists  of  Rome. 

I  am  sensible  that  in  this  enumeration  of  the  advantages  of 
the  study  we  have  been  considering,  I  may  probably  be  falling 
into  the  common  error  of  those  who  having  a  theme  allotted 
them,  try  to  bring  more  out  of  it  than  there  is  in  it.  To  cor- 
rect such  a  mistake,  let  it  be  frankly  admitted  that  Roman 
law,  though  indispensable  to  the  philosophical  jurist,  is  not 
so  to  the  practitioner ;  and  that  no  knowledge  of  it  can  make 
up  to  him  for  the  neglect  of  his  own  law.  Let  it  also  be  con- 
ceded that  it  is  not  a  subject  ever  likely  to  hold  a  front  rank 
among  those  which  awaken  the  ardour  of  our  academic  youth. 
It  wants  that  charm  of  incompleteness,  of  unexhausted  possi- 
bilities of  discovery,  which  fascinates  us  in  the  sciences  of 
nature.  It  does  not,  like  metaphysics,  set  us  face  to  face 
with  the  most  stimulating  problems  of  thought  and  life;  nor 
can  it,  like  history,  dazzle  the  imagination  and  stir  the  emo- 
tions, by  leading  us  through  a  long  gallery  of  striking  scenes 
and  characters.  Yet  the  study  is  one  which  pleases  and  sat- 
isfies as  well  as  instructs;  for  it  is  at  once,  and  that  in  the 
healthiest  way,  theoretical  and  practical,  excellently  philo- 
sophical in  its  methods,  yet  never  quitting  the  firm  ground 
of  reality.  Its  materials  are  contained  in  the  writings  of 
men,  the  purity  and  loftiness  of  whose  ethical  tone  were 
scarcely  surpassed  by  the  brilliance  of  their  constructive 
genius.  It  is  perhaps  the  most  perfect  example  which  the 
range  of  human  effort  presents  of  the  application  of  a  body 
of  abstract  principles  to  the  complex  facts  of  life  and  society. 
To  quote  once  more  from  the  most  famous  of  modern  jurists : 
— '  The  study  of  Law,'  says  Savigny,  '  is  of  its  very  nature  ex- 
posed to  a  double  danger:  that  of  soaring  through  theory 
unto  the  empty  abstractions  of  r  fancied  law  of  nature,  and 
that  of  sinking  through  practice  into  a  soulless  unsatisfying 
handicraft.  Roman  law,  if  we  use  it  aright,  provides  a  cer- 
tain remedy  against  both  dangers.  It  holds  us  fast  upon  the 
ground  of  a  living  reality;  it  binds  our  juristic  thought  on 


IMVGURAL  LECTVKK  885 

the  one  side  to  a  magnificent  past,  on  the  other,  to  the  legal 
life  of  existing  foreign  nations,,  with  whom  we  are  thereby 
brought  into  a  connexion  wholesome  both  for  them  and  for 
ourselves '.' 

Standing  midway  between  those  classical  and  historical 
studies  which  belong  to  a  general  liberal  education,  and  those 
purely  professional  studies  which  form  the  first  stage  of  active 
life,  it  is  especially  fitted  to  lead  men  from  the  one  to  the 
other,  and  show  them  how  to  turn  to  account  in  the  latter 
the  ideas  and  capacities  which  the  former  has  given  them. 
But  although  this  is  a  strong  reason  why  the  University  of 
Oxford  should  undertake  to  recognize  and  promote  the  study, 
it  is  not  the  only  or  the  chief  reason.  Even  more  important 
than  the  function  of  an  University  in  education,  is  the 
scarcely  separable  function  of  dealing  with  every  department 
of  human  activity  in  the  abstract,  investigating  its  principles 
and  developing  its  rules  in  their  philosophical  coherence. 
We  are  all  too  apt,  in  the  hurry  of  life  and  the  pressure  of  its 
trivial  necessities,  to  lose  sight  of  that  which  is  universal  and 
permanent — to  forget  that  what  we  are  pursuing  as  a  trade  is 
the  subject  of  a  science,  and  has,  as  such,  its  greatness  and 
its  perfectibility.  The  ideal  is  not  far  from  us,  but  we  catch 
only  transient  glimpses  of  it;  and  of  those  who  continue  in 
maturer  life  to  cherish  the  belief  in  its  worth,  the  most  con- 
ceive of  it  in  relation  to  their  inner  life  only,  and  look  on 
their  action  in  the  world  without  as  something  which  belongs 
to  another  and  a  meaner  sphere.  The  University  is  appointed 
to  correct  this  failing — to  link  the  present,  in  which  things 
seem  petty,  to  the  past  which  clothes  them  with  a  mellower 
light — to  ennoble  practice  by  a  constant  recurrence  to  theory 
— to  show  that  intellectually  as  well  as  ethically  there  is 
nothing  common  or  vulgar,  nothing  which  may  not  and  ought 
not  to  be  considered  as  within  the  domain  of  Philosophy, 
who,  the  more  perfect  she  becomes,  sees  more  clearly  that 
which  is  great  in  that  which  is  the  least.  In  undertaking, 
therefore,  not  only  to  educate  in  the  ordinary  liberal  studies, 
but  also  to  deal  in  a  broad  and  lofty  spirit  with  such  large 

1  Preface  to  vol.  iii.  of  the  System  des  heutigrn  romischen  Recktt. 


886  INAUGURAL  LECTURE 

practical  topics  as  this  of  law,  the  English  Universities  will 
in  a  new  way  justify  their  possession  of  that  wealth  and  ex- 
ternal splendour  which  they  alone  out  of  the  great  mediaeval 
sisterhood  have  been  privileged  to  retain.  They  will  asso- 
ciate themselves  more  closely  with  the  life  of  the  nation,  and 
confirm  the  reverence  with  which  it  still  regards  them;  nor 
is  it  idle  to  add  that  in  thus  enlarging  the  scope  of  their 
activity,  they  will  be  closely  following  and  worthily  main- 
taining the  traditions  of  their  glorious  past. 


XVIII 

VALEDICTORY  LECTURE1 

LEGAL  STUDIES   IN 
THE  UNIVERSITY   OF   OXFORD 

TWENTY-THREE  years  have  passed  since  I  entered  on  the 
duties  of  the  Chair  of  Civil  Law  in  this  University :  and 
to-day,  in  obedience  to  precedents  of  high  authority,  I  come 
to  say  some  parting  words  suggested  by  the  experience  of 
those  years.  They  have  been  years  full  of  experience  for  us 
all  :  and  it  may  be  not  unprofitable  that  I  should  note  the 
changes  they  have  brought  and  endeavour  to  estimate  the  posi- 
tion which  legal  studies,  and  especially  the  study  of  the  Civil 
Law,  have  now  reached  in  the  University  and  in  the  country. 

Those  changes  have  been  many  and  momentous.  Since 
1870  the  University  has  nearly  doubled  the  number  of  its 
undergraduates  and  has  greatly  increased  the  number  of  its 
teachers.  It  draws  students  much  more  largely  from  the  less 
wealthy  classes  of  the  people.  A  new  college  has  been 
founded,  and  risen  to  prosperity :  an  old  one  has  been  re- 
founded  and  enlarged.  Two  colleges  for  women  have 
sprung  up  and  taken  firm  root.  Theological  tests  have  been 
abolished:  persons  not  belonging  to  the  Church  of  England 
as  by  law  established  have  begun  to  resort  freely  to  Oxford : 
two  theological  faculties  belonging  to  unestablished  religious 
bodies  have  come  to  dwell  in  her  midst,  and  have  received 
a  courteous  welcome.  Nor  have  any  of  the  unfortunate  con- 

1  Delivered  on  resigning  the  Regius  Professorship  of  Civil  Law  at  Oxford, 
June  10,  1893. 


888  VALEDICTORY  LECTURE 

sequences  predicted  as  likely  to  follow  from  the  admission  of 
Nonconformists  been  actually  experienced,  for  there  has  been 
a  diminution  of  theological  controversy,  a  growing  sense  of 
friendliness  and  sympathy  among  Christians,  a  more  assured 
peace  in  the  minds  of  our  students. 

The  examination  system  has  been  remodelled,  with  a 
regrettable  but  perhaps  inevitable  increase  of  complexity,  as 
well  as  enlarged  by  the  inclusion  of  new  studies.  The  Uni- 
versity and  the  Colleges  have  been  dealt  with  by  Parliament 
and  by  an  Executive  Commission :  and  the  serious  conse- 
quent evils  have  been  not  wholly  uncompensated  by  gains. 
Oxford  has  undertaken  many  new  kinds  of  work.  She  pro- 
vides University  Examinations  for  Women,  and  sends  zealous 
young  lecturers  everywhere  through  England  to  bring  teaching 
of  an  academic  type  within  the  reach  of  the  people. 

As  regards  Law,  while  the  degree  of  Doctor  of  Civil  Law 
has  become  a  true  distinction  by  the  requirement  of  a  thesis 
of  substantial  merit  instead  of  the  former  purely  formal  exer- 
cise, the  B.C.L.  examination  (theretofore  scarcely  serious) 
was  made  by  a  statute  of  1872  a  reality :  the  standard  both  of 
honours  and  of  the  pass  degree  has  steadily  risen,  and  this 
rise  has  been  accompanied  by  an  increase  of  candidates. 
That  examination  is  probably  now,  I  do  not  say  the  most 
severe  test  of  legal  attainments,  but  the  best  arranged  and 
most  practically  useful  law  examination  in  England.  In  the 
years  preceding  1870  there  were  seldom  more  than  two  or 
three  entrants  for  this  examination,  almost  absurdly  easy  as 
it  then  was.  There  are  now  usually  upwards  of  twenty  and 
sometimes  twenty-five.  Similarly  the  number  of  candidates 
in  the  School  of  Jurisprudence,  by  which  candidates  can 
obtain  the  degree  of  B.A.,  has  grown  and  the  quality  of  the 
work  has  improved. 

In  1868  there  were  only  three  Chairs  in  the  Faculty  of  Law  : 
those  of  Civil  Law,  Common  Law,  and  International  Law, 
besides  the  temporary  Vinerian  Readership ;  and  of  these 
that  of  Common  Law  was  virtually  in  abeyance.  In  1870  the 
work  of  the  Corpus  Professorship  of  Jurisprudence  began  with 
the  lectures  of  an  illustrious  writer  whose  fame  two  Universi- 


i  ILBDICTOKf   /./.'//  RE  *#.* 

ties  dispute,  for  if  Cambridge  reared  him,  Oxford  gave  him 
the  occasion  for  teaching,  Sir  Henry  Maine.  In  1878  the 
Readership  in  Indian  Law,  and  in  1881  that  in  Roman  Law, 
was  founded  and  the  opportunity  taken  of  placing  in  it  the 
zeal  and  learning  of  a  German  civilian — Dr.  Erwin  Gruebei 
—whose  lectures  have  proved  most  helpful.  In  1882  the 
Yinerian  Chair  of  Common  I^w  became  (as  we  trust  it  will 
ever  continue)  a  working  chair  by  the  choice  of  another  dis- 
tinguished man  whose  powers,  always  admired  by  his  friends, 
are  now  recognized  over  the  English-speaking  world,  and  to 
whom  belongs  the  rare  honour  of  having  devoted  those  powers 
to  the  service  of  his  political  allies  in  a  great  and  burning 
controversy  without  impairing  the  respect  which  all  parties 
feel  for  the  depth  and  soundness  of  his  constitutional  lore. 

Thus  there  are  now  seven  working  professorships  :  and  to 
these  we  must  add,  in  estimating  the  teaching  force  which 
the  University  possesses,  the  lectures  of  another  distinguished 
writer  who  may  be  reckoned  as  virtually  a  law  professor — the 
Warden  of  All  Souls  :  and  of  more  than  ten  College  lecturers, 
who  serve  the  University  as  well  as  their  respective  Colleges, 
with  recognized  efficiency. 

Thus,  upon  a  review  of  recent  years,  we  may  say  that  as  the 
whole  University  has  grown  and  expanded,  so  has  also  this 
side  of  her  activity,  and  that  which  was  once  a  dry  river-bed, 
or  presented,  like  a  South  African  river,  only  a  few  scattered 
pools  of  stagnant  water,  has  now  become  a  wide  and  fertiliz- 
ing stream. 

That  serious  deficiencies  exist  I  am  well  aware  :  I  shall 
presently  advert  to  them  and  to  the  steps  that  may  be  taken 
to  remove  them.  For  the  moment,  however,  I  am  noting 
progress  actually  made  and  gains  actually  secured.  Among 
these  may  be  reckoned  the  assured  position  which  the  study 
of  the  Roman  Law  now  enjoys. 

Though  this  was  the  first  subject  recorded  to  have  been 
taught  in  Oxford,  for  one  of  the  earliest  notices  of  the  Uni- 
versity is  to  be  found  in  the  sentence  '  Magister  Vacarius  in 
Oxenefordia  legem  (sc.  Romanam)  docuit,'  and  though  from 
his  time  (the  reign  of  King  Stephen)  down  till  the  seven- 


890  VALEDICTORY  LECTURE 

teenth  century  it  held  a  rank  second  only  to  that  of  theology, 
it  had  within  the  last  hundred  years  virtually  died  out  of  the 
University,  and  this  chair,  founded  by  King  Henry  VIII  in 
1546,  and  occupied  in  the  time  of  King  James  I  by  Alberico 
Gentili,  had  become  a  sinecure.  A  few  law  degrees  no  doubt 
continued  to  be  given,  but  they  carried  no  evidence  of  know- 
ledge. The  revival  begins  with  the  substitution  in  1852  of  an 
examination  (albeit  a  very  slight  one)  for  the  old  formal  exer- 
cises for  the  degree  of  B.C.L.,  and  the  creation  in  1853  of 
the  Law  and  Modern  History  School  (in  which  the  Institutes 
of  Justinian  were  made  a  subject  of  examination).  That 
School  was  in  1872  divided  into  the  present  two  Schools  of 
Modern  History  and  of  Law,  in  the  latter  of  which  Roman 
Law  received  a  more  important  place.  Till  1870,  however, 
there  was  scarcely  any  teaching,  and  what  little  did  exist  in 
the  colleges  was  confined  to  commenting  upon  the  solitary 
book  required  for  the  examination.  No  one  had  lectured  on 
the  Digest;  no  one  had  treated  the  history  of  the  subject. 
This  was  part  of  that  remarkable  isolation  of  England  from 
the  general  current  of  European  legal  thought  and  practice 
which  was  due  partly  to  the  resistance  to  the  encroachments 
of  the  Canon  Law,  first  of  the  barons  in  the  thirteenth  cen- 
tury, and  again  of  the  Parliament  under  Richard  II,  partly  to 
the  great  religious  breach  of  the  sixteenth  century,  an  isola- 
tion once  politically  fortunate,  for  it  helped  to  develop  the 
free  spirit  of  the  common  law,  but  in  our  days,  when  the  old 
dangers  have  vanished,  a  circumstance  to  be  regretted  and 
removed.  Among  the  modes  of  removing  it,  the  study  of  the 
Civil  Law  is  not  the  least  important.  That  study  may  now 
be  deemed  to  have  struck  here  in  Oxford  deep  and  tenacious 
roots.  Both  in  our  examinations  and  in  our  teaching  it  holds 
a  place  equal  in  dignity  to  English  Law,  though  doubtless  of 
narrower  compass.  It  attracts  in  fully  as  large  a  measure  the 
interest  of  the  more  intelligent  among  our  students,  and  it 
can  hardly  be  doubted  that  the  excellence  of  the  Law  School 
in  the  future  will  largely  depend  upon  its  maintenance  as 
a  main  element  in  both  teaching  and  examination. 

Its  practical  utility  to  the  English  lawyer  is  one  of  the 


I   1 /,/;/>/<"/ OAT    LKCTURB  891 

points  on  which  you  may  expect  the  results  of  my  experience 
to  be  stated ;  for  it  is  a  point  upon  which  attention  must  be 
constantly  fixed,  and  I  have  had  opportunities  of  studying  it 
amid  the  din  and  dust  of  forensic  practice  in  IxDndon  no  less 
than  in  the  cloistered  seclusion  of  Oxford. 

In  the  Inaugural  Lecture  which  I  delivered  here  in  1871, 
an  attempt  was  made  to  treat  this  subject.  It  was  there 
pointed  out  that  the  utilities  of  the  Civil  Law  to  Englishmen 
might  be  reduced  to  three  heads.  One  was  its  connexion 
with  the  main  stream  of  the  world's  history  from  the  time  of 
Pyrrhus,  the  first  formidable  antagonist  from  non-Italian  soil 
whom  Rome  overthrew,  to  that  of  Muhamad,  by  whose  first 
successors  the  East  was  torn  from  her  grasp ;  and  its  influ- 
ence, less  conspicuous,  but  still  considerable,  upon  the  growth 
of  opinion  and  the  development  of  institutions  ever  since. 
This  is  an  aspect  of  the  subject  which,  since  it  belongs  rather 
to  the  historian  than  the  lawyer,  I  shall  not  pursue  further 
to-day,  though  subsequent  reflection  leads  me  to  believe  that 
its  importance  can  hardly  be  overrated.  The  second  utility 
was  to  be  found  in  the  fact  that  Roman  Law  is  the  substratum 
of  some  branches  of  English  Law,  directly  of  the  law  admini- 
stered in  the  Probate  and  Admiralty  Division  of  the  High 
Court  of  Justice,  and  indirectly  of  a  good  deal  administered 
in  the  Chancery  Division,  in  the  further  fact  that  it  is  the 
actual  law  of  some  of  our  colonies  from  which  appeals  come 
to  the  Privy  Council,  as  well  as  the  foundation  of  the  law  of 
Scotland  whence  appeals  come  to  the  House  of  Lords,  and  in 
the  command  which  it  gives  of  the  law  of  modern  continental 
Europe,  since  it  is  the  basis  of  the  systems  that  prevail  in  all 
those  countries,  and  its  knowledge  is  a  sort  of  master-key  to 
each  and  every  of  them.  These  circumstances — so  I  then 
argued — make  it  practically  serviceable  to  the  practitioner, 
and  justify  a  man  bent  on  professional  success  in  devoting 
some  time  to  its  study.  The  third  utility  was  to  be  found  in 
its  educational  value,  as  forming  the  mind  and  training  the 
aptitudes  of  the  student  devoting  himself  either  to  the  theory 
or  the  practice  of  English  Law.  On  these  latter  two  of  the 
above-mentioned  three  points  it  is  proper  to  say  a  few  words. 


892  VALEDICTORY  LECTURE 

An  observation  extending  over  twenty-two  years  leads  me 
to  lay  less  weight  than  I  laid  in  1871  on  the  direct  profes- 
sional gain,  in  the  way  of  securing  practice  at  the  bar,  to  be 
expected  from  a  knowledge  of  Roman  Law.  Sometimes  no 
doubt  a  man  may  find  such  knowledge  directly  helpful  in 
writing  opinions  (especially  if  points  of  Scotch  or  French  or 
German  or  Roman  Dutch  law  arise),  or  in  arguing  before 
a  Court.  Once  in  addressing  the  Hcuse  of  Lords  in  a  Scotch 
Appeal  I  discovered  a  pretext  for  quoting  the  Digest,  which 
that  august  body  received  with  grave  approval,  as  not  unbefit- 
ting the  large  survey  they  are  wont  to  take  of  every  matter 
that  comes  before  them.  But  instances  of  this  kind  are  rare 
in  ordinary  practice.  It  would  be  unbecoming  to  dilate  upon 
this  aspect  of  the  question,  for  a  University  is  the  last  place 
in  which  the  worth  of  knowledge  ought  to  be  measured  by  its 
merely  gainful  utility,  or  where  our  studious  youth  ought  to 
be  led  to  set  their  hearts  upon  immediate  practical  success. 
Still,  if  one  is  asked  to  deal  with  the  point  upon  a  hard  utili- 
tarian basis,  I  cannot  allege  that  the  advantage  to  be  expected 
from  the  possession  of  this  acquirement  does  much  more  than 
counterbalance  the  impression  which  still  prevails  in  the 
'  other  branch  of  the  profession,'  that  it  is  a  little  uncanny 
for  a  barrister  to  be  known  for  anything  except  his  knowledge 
of  the  English  Law.  Things  might  fall  out  differently  for 
the  young  civilian  to  whom  a  judicious  firm  of  solicitors 
vouchsafed  a  chance  of  getting  into  Canadian  Appeal  busi- 
ness or  Admiralty  business.  But  in  such  a  world  as  the  pre- 
sent, and  more  particularly  at  the  bar,  one  cannot  await 
chances  or  shape  one's  course  with  a  view  to  them;  one  must 
seize  those  that  come  and  float  onwards  with  the  tide.  The 
ambitious  junior  may  desire  to  be  employed  in  subtle  ques- 
tions of  insurance  or  company  law,  but  if  briefs  are  offered 
him  at  the  Old  Bailey  or  even  in  the  Divorce  Court,  he  will 
probably  deem  it  wise  to  accept  them,  and  to  wait  till  his 
position  is  assured  before  he  begins  to  pick  and  choose  among 
the  business  which  clients  send.  In  the  long  run,  no  doubt, 
a  man  who  knows  Roman  Law  will  find  many  cases  in  which, 
when  he  has  attained  a  front  rank  in  the  profession,  he  can 


VALEDICTORY  LECTURE  893 

profit  by  that  knowledge.  But  the  main  thing  for  the  prac- 
titioner is  to  get  a  start;  and  it  is  not  certain  that  any  one 
will  get  this  start  sooner  by  being  as  good  a  civilian  as 
Oxford  can  make  him. 

This  may  be  deemed  a  somewhat  sordid  aspect  of  the  mat- 
ter; so  let  me  hasten  to  correct  any  possible  misapprehen- 
sion by  adding  that  as  respects  the  third  head  of  utility — that 
of  the  benefit  to  a  student's  mind  which  training  in  Roman 
Law  gives,  I  can  dwell  upon  it  with  a  confidence  deepened 
by  the  experience  of  every  year.  Far  be  it  from  me  to  dispa- 
rage the  law  of  England  as  it  was  disparaged  by  the  eager 
reformers  of  seventy  or  even  of  fifty  years  ago,  impatient  of 
the  delects,  many  of  them  removed  since  their  days,  which 
then  marred  its  noble  proportions.  It  is  a  system  worthy  of 
all  admiration  for  its  humane  spirit,  for  the  sense  of  civic 
equality  and  personal  freedom  which  pervades  it,  for  its  elas- 
tic power  of  adapting  its  provisions  to  the  needs  of  the  great 
communities  that  live  by  it,  not  here  only  but  beyond  the 
Atlantic  and  beneath  the  Southern  Cross.  Its  faults  lie  not 
in  its  substance  but  in  the  form  which  the  historical  con- 
ditions of  its  growth  have  given  to  it.  It  is  a  system  ex- 
tremely hard  to  expound  and  hard  to  master.  So  vast  is  it 
and  so  complicated,  so  much  are  its  leading  principles  ob- 
scured by  the  way  in  which  they  have  been  stated,  scattered 
here  and  there  through  cases  reported  in  a  chronological 
order,  which  is  the  perfection  of  disorder,  so  much  have 
many  of  its  main  doctrines  been  cut  across  and  (so  to  speak) 
dislocated  by  modern  Statutes,  that  it  presents  itself  to  the 
learner  as  a  most  arduous  study,  a  study  indeed  which  only 
a  few  carry  so  far  as  to  make  themselves  masters  of  the  whole 
body  of  our  working  rules.  Roman  Law,  on  the  other  hand, 
is  not  only  simpler,  since  it  wants  those  differences  between 
real  and  personal  property,  and  between  legal  and  equitable 
rights  to  which  so  much  of  our  English  complexity  is  due, 
but  more  limited  in  its  range,  large  modern  departments,  like 
those  of  company  law  and  insurance  law  and  negotiable  in- 
struments, being  absent.  It  is  therefore  a  subject  the  whole 
of  which  the  student  can  more  easily  bring  under  his  eye, 


894  VALEDtCTORY  LECTURE 

seeing  the  various  parts  in  their  relation  to  one  another. 
What  is  of  still  higher  import,  the  Roman  Law  is  symmetri- 
cal and  coherent.  Each  part  not  only  has,  but  displays,  its 
organic  relation  with  every  other  part.  The  original  sources 
in  which  we  possess  it  are  of  moderate  bulk,  not  larger 
than  the  English  Law  Reports  of  the  last  four  or  five  years, 
and  not  a  two-hundredth  part  of  the  total  volume  of  our 
Reports. 

Less  than  one-fourth  of  these  writings  is  now  of  practical 
consequence,  for  the  remainder,  though  interesting  histori- 
cally, deal  with  matters  not  significant  to  the  modern  lawyer. 
But  the  fraction  which  still  concerns  us  is  of  the  highest  pos- 
sible merit.  In  it  one  may  find  something  of  value  upon 
almost  every  principle  and  general  legal  doctrine  with  which 
a  jurist  has  to  deal.  The  legal  conceptions  set  forth  are 
those  upon  which  all  subsequent  law  has  been  based ;  and 
nearly  all  of  them  find  their  place  in  our  own  system,  which 
they  have  largely  contributed  to  mould.  Two  of  the  Roman 
text-books  deserve  special  mention.  The  Institutes  of  Gaius 
is  a  model  of  vigorous  precision  and  lucidity,  an  elementary 
treatise  to  which  we  have  nothing  comparable.  The  Digest 
of  the  Emperor  Justinian,  containing  short  extracts  from 
a  number  of  the  most  eminent  legal  writers  of  earlier  times, 
has  excited  the  admiration  of  all  succeeding  generations  by 
the  concise,  delicate,  and  philosophical  way  in  which  princi- 
ples are  set  forth  and  points  of  detail  investigated.  Its  con- 
tents are  philosophical,  not  in  the  sense  of  being  abstract, 
but  in  the  firm  grasp  of  principles,  and  the  refined  exactitude 
with  which  every  principle  is  applied.  No  rules  could  bet- 
ter conform  to  the  three  canons  of  good  law,  that  it  should 
be  definite,  self-consistent,  and  delicately  adapted  to  the 
practical  needs  of  society.  No  study  can  be  better  fitted  to 
put  a  fine  edge  upon  the  mind,  or  to  form  in  it  the  habit  of 
clear  logical  thinking. 

In  England  we  have  nothing  similar,  and  although  the 
study  of  case  law  may  be  made,  and  has  sometimes  been 
made  in  the  hands  of  a  skilful  teacher  (such  as  Mr.  C.  C. 
Langdell,  of  the  Harvard  University  Law  School),  as  good 


VALEDICTORY   LVCTURB  895 

a  training  in  subtlety  and  exactness  as  the  Roman  Law  or 
indeed  as  the  scholastic  logic  of  the  Middle  Ages,  the  im- 
mense bulk  of  our  cases  makes  it  difficult  to  pursue  such  a 
method  over  the  whole  field  which  a  learner  ought  to  cover. 

*  Nevertheless,'  some  one  may  say,  *  even  if  the  merits 
claimed  for  the  Roman  system  be  admitted,  it  is  not  our 
English  system,  and  you  are  doubling  the  learner's  labour. 
Why  should  he  add  to  the  time  and  toil  that  the  study  of 
English  Law  needs,  the  time  and  toil,  less  though  it  be, 
needed  for  mastering  the  Roman  ?  Why  attempt  both,  when 
one  alone  is,  on  your  own  showing,  so  arduous  ? ' 

The  answer  is  that  the  learner  will  make  quite  as  rapid 
progress  with  English  Law  if  he  has  begun  with  Roman  as  if 
he  proceeds  to  break  his  teeth  from  the  first  upon  the  hard 
nuts  of  our  own  system.  Twenty-one  years  ago  I  ventured  to 
say  this  here  and  I  venture  now  to  repeat  it  with  fuller  con- 
fidence. Two  men  of  equal  ability  and  diligence  start  to- 
gether after  taking  their  B.A.  degree.  One  gives  a  year  to 
Roman  Law  and  the  two  next  to  English.  The  other  devotes 
to  English  the  whole  three  years.  At  the  end  of  the  three 
years  the  first  will  know  as  much  English  Law  as  the  second. 
He  may  not  have  covered  so  much  ground  or  got  on  his  tongue 
the  names  of  so  many  cases,  but  he  will  know  what  he  does 
know — nor  will  it  be  much  less  in  quantity — more  thoroughly 
and  rationally.  The  explanation  is  twofold.  In  learning 
Roman  Law,  one  learns  the  elements  of  law  in  general,  and 
therefore  of  English  Law  also,  these  elements  being  more 
easily  learnt  from  Roman  sources,  than  they  could  be  in  the 
form  they  have  taken  among  ourselves.  And,  secondly,  in 
learning  Roman  Law  one  obtains  a  means  of  testing  one's 
comprehension  of  the  real  meaning  of  English  terms  and  the 
nature  and  compass  of  English  rules,  which  deepens  and 
strengthens  the  learner's  hold  upon  his  knowledge.  The 
main  difficulty  which  besets  students  till  they  have  had  a 
good  deal  of  actual  practice  is  to  turn  into  the  concrete  the 
rules  they  have  learnt  in  the  abstract,  or  as  a  Roman  lawyer 
says,  Leges  scire  non  est  verb  a  earum  tenere  sed  vim  atqiie 
potestatem.  The  study  of  reported  cases  is  a  valuable  aid  in 


896  VALEDICTORY  LECTLRE 

grasping  the  practical  application  of  rules,  but  cases  are  com- 
plicated by  many  details  extraneous  to  the  principle.  When, 
however,  a  m^n  has  so  mastered  the  main  outlines  of  Roman 
Law  as  to  be  familiar  with  its  conceptions  and  understand  the 
application  of  its  leading  rules,  he  is  naturally  and  almost 
necessarily  led  in  his  study  of  English  Law  to  compare  the 
conceptions  and  rules  he  finds  there.  FLs  text-book  tells 
him,  for  instance,  that  the  English  rule  regarding  the  passing 
of  the  ownership  of  an  object  sold,  is  such  and  such.  What 
is  the  Roman  rule  ?  If  the  two  rules  agree,  he  remembers 
the  English  better.  If  they  vary,  he  is  led  to  ask  why;  and 
he  obtains  a  juster  view  of  the  origin,  bearings,  and  range  of 
the  English  rule  from  perceiving  wherein  it  differs  from  the 
Roman.  If  any  one  thinks  there  is  a  risk  of  his  confounding 
the  two,  and  becoming  muddled  between  them,  I  can  only 
say  that  I  have  never  known  this  happen,  partly,  perhaps, 
because  in  dealing  with  Roman  Law  one  thinks  in  Latin — a 
good  thing  to  do — and  expresses  in  its  technical  terms  the 
result  one  arrives  at.  On  the  contrary,  the  student  gets  a 
clearer  and  sharper  view  of  the  grounds  of  every  doctrine, 
and  of  its  precise  compass,  than  he  could  get  from  studying 
either  system  by  itself.  It  is  a.-^  when  in  studying  a  foreign 
language  one  translates  constantly  backwards  and  forwards 
into  one's  own,  and  obtains  thereby  both  a  finer  perception 
of  the  idioms  of  both,  and  a  more  exact  comprehension  of 
the  substantial  meaning  of  every  sentence  that  is  so  trans- 
lated. 

I  may  be  reminded  that  the  advantage  here  claimed  does 
not  apply  to  all  departments  of  Roman  Law  alike,  but  to 
those  only  which  cover  the  same  field  as  our  own  Law.  The 
remark  is  trre,  and  draws  with  it  a  practical  lesson.  The 
subject  has  two  aspects.  Besides  its  intrinsic  scientific  inter- 
est as  a  vast  and  harmonious  system,  it  has  a  historical  aspect 
for  the  scholar  and  the  student  of  institutions  :  it  has  a  prac- 
tical or  professional  aspect  for  the  lawyer.  Different  parts 
of  it  are  especially  interesting  to  one  or  other  of  these  classes. 
Much  of  the  law  of  persons,  of  crimes,  and  of  procedure, 
while  it  engages  the  curiosity  of  the  scholar  or  historian,  is 


LECTURM  897 

too  remote  from  modern  conditions  of  life  to  attract,  or  to 
profit,  the  jurist  of  today.  What  he  will  chiefly  value  are 
the  parts  that  deal  with  the  law  of  Property,  including  Inheri- 
tance (though  even  in  this  there  is  a  good  deal  whose  in- 
terest is  now  merely  historical)  and  of  Obligations,  together 
with  some  parts  of  the  law  of  persons,  such  as  marriage  and 
guardianship.  These  are  the  parts  on  which  the  teacher 
should  here  in  England  expend  his  efforts,  for  it  is  in  these 
that  the  comparison  with  English  Law  is  chiefly  instructive. 
He  should  lead  the  student  along  a  path  from  which  the  pa 
rallel  territories  of  English  Law  are  in  full  view,  and  carry 
him  constantly  to  and  fro  across  the  border.  So  if  I  may,  at 
the  risk  of  seeming  to  transgress  a  Roman  rule,  give  a  legacy 
to  an  uncertain  person,  I  will  bequeath  to  my  successor,  who- 
ever he  may  be,  this  maxim  as  the  best  practical  result  of  my 
experience — that  Roman  Law  must  always  be  so  taught  as  to 
be  brought  into  the  closest  and  most  constant  relation  with 
English  Law,  since  it  will  thereby  become  not  only  more 
helpful  but  more  enjoyable  to  both  learner  and  teacher.  It 
ought  to  be  treated  as  a  practical  working  system,  full  of 
life,  not  only  because  it  is  preserved  to  us  in  lifelike  detail, 
but  also  because  it  is  still  actually  in  force  as  the  operative 
law  of  some  countries,  full  therefore  of  direct  instruction 
and  suggestion  for  ourselves,  capable  of  being  used  to  enlarge 
English  conceptions  or  indicate  useful  modifications  of  Eng- 
lish rules. 

In  discoursing  on  it,  if  I  may  in  this  expiring  swan  song 
refer  to  my  own  experience,  I  have  usually  passed  by  what 
may  be  called  its  antiquarian  aspects,  not  from  any  want  of 
interest  in  them,  but  because  the  object  of  quickening  the 
interest  and  training  the  intellect  of  the  cupida  legitm  iuvtntus 
seemed  more  urgent.  It  has  been  rather  in  the  public  lec- 
tures delivered  from  time  to  time  before  the  University,  that 
I  have  endeavoured  to  develop  and  illustrate  the  wider  his- 
torical relations  of  the  law  of  Rome,  and  to  connect  it,  some- 
times in  the  letter,  sometimes  in  the  spirit,  not  only  with  the 
history  of  the  Empire  and  the  Church,  but  also  with  the 
problems  of  abstract  jurisprudence,  with  political  ideas  and 
57 


898  VALEDICTORY  LECTURE 

constitutional  forms,  with  the  legal  institutions  of  peoples 
remote  in  time,  like  the  primitive  Icelanders,  or  dissimilar 
in  race  and  habits,  like  the  Musulmans  of  the  contemporary 
East,  with  current  questions  on  which  Roman  experience 
sheds  light,  such  -as  the  law  of  Marriage  and  Divorce,  with 
the  enterprises  of  modern  law-makers,  like  the  Legislatures  of 
the  States  of  North  America  or  the  rulers  of  British  India. 
Sometimes  these  lectures  may  seem  to  have  strayed  beyond 
the  strict  limits  of  the  Chair.  I  have  then  fallen  back  on 
the  ancient  adage  Roma  caput  mundi  regit  orbis  frena  rotundi, 
and  have  feigned  for  the  Imperial  law  a  continuance  of  its 
oecumenical  authority.  The  Roman  law  is  indeed  still 
worldwide,  for  it  represents  the  whilom  unity  of  civilized 
mankind.  There  is  not  a  problem  of  jurisprudence  which  it 
does  not  touch:  there  is  scarcely  a  corner  of  political  science 
on  which  its  light  has  not  fallen. 

In  the  opportunities  for  such  placing  the  two  systems  side 
by  side  lies  the  one  great  advantage  which  English  and  Anglo- 
American  civilians  enjoy  as  compared  with  their  continental 
brethren.  To  the  latter  the  Roman  Law  is  the  basis — in 
some  countries  it  may  almost  be  called  the  modified  sub- 
stance— of  the  current  law.  To  us  it  is  a  parallel  system 
with  which  comparisons  can  be  made.  These  comparisons 
are  eminently  fertile  in  elucidation  of  the  past  condition  of 
both  systems,  and  in  criticism  of  their  present  condition. 
To  no  scholars  ought  the  early  history  of  the  Roman  Law  to 
be  at  once  so  easily  comprehensible  and  so  instructive  as 
to  us  in  England,  because  the  history  of  our  own  law  is  full 
of  beautiful  analogies  therewith.  So  no  jurists  are  better 
able  to  estimate  the  value  of  Roman  doctrines  on  many  prin- 
ciples of  contractual  law,  because  our  system  has  developed 
independently,  and  illustrates  the  Roman  equally  where  it 
differs  and  where  it  agrees.  We  in  England  cannot  pretend 
to  rival  the  work  which  the  great  Germans  of  this  century, 
men  like  Savigny  and  Vangerow,  Ihering  and  Windscheid  and 
Mommsen,  have  done  for  the  investigation  and  exposition  of 
Roman  jurisprudence  and  legal  history.  But  our  detached 
position  ought  to  give  us  a  perspective  and  a  freshness  of 


VALEDICTORY  LECTURU  8W 

critical  insight,  perhaps  even  a  means  of  comprehending 
things  by  reading  our  own  experience  into  them,  which  con- 
tinental scholars  sometimes  lack ;  and  of  that  experience, 
we  may  trust,  due  use  will  some  day  be  made.  For  I  cannot 
doubt,  looking  not  only  to  the  progress  of  the  study  in  Eng- 
land, but  to  its  rapid  and  solid  growth  in  the  Universities  of 
America,  that  the  study  of  the  Roman  Law,  once  so  nearly 
extinct  among  us,  is  now  destined  to  shine  with  a  steady 
light  for  generations  to  come. 

I  had  intended  to  review,  in  connexion  with  the  progress 
of  our  own  law  school,  the  changes  which  have  passed  on  the 
aspects  of  legal  science  in  England  within  the  last  thirty 
years.  Two  among  them  give  cause  for  regret,  the  decline 
of  interest  in  projects  for  simplifying  and  consolidating  the 
law,  and  the  growing  despondency  wherewith  attempts  to 
amend  our  legal  procedure  are  now  regarded,  a  despondency 
probably  due  to  the  imperfect  success  which  has  attended 
those  Judicature  Acts  from  which  so  much  was  hoped  twenty 
years  ago.  There  are  few  countries  in  which  so  small  a  propor- 
tion of  the  men  engaged  in  professional  work  show  an  active 
interest  in  legal  reforms.  Against  these  grounds  of  dis- 
heartenment  I  should  have  set  the  increasing  zest  wherewith 
the  comparative  method  is  being  historically  applied  to  the 
investigation  of  the  origin  of  law  and  of  political  institu- 
tions, and  should  have  dwelt  on  the  revived  study  of  primi- 
tive custom  as  the  foundation  of  those  institutions,  as  well 
as  on  the  more  active  discussion  of  constitutional  questions 
generally,  whether  foreign,  or  American,  or  domestic,  and 
the  vigour  which  so  many  of  our  younger  writers  show  in  ex- 
amining the  ethical  and  economic  bases  and  grounds  of  law, 
with  views  wider  and  more  sympathetic,  if  also  more  suffused 
by  the  moist  light  of  emotion,  than  were  those  which  some 
among  us  drew  from  the  Utilitarians  of  the  last  generation. 
But  these  topics  would  lead  me  too  far  afield ;  it  is  for  the 
present  enough  to  observe  two  happy  changes  which  we  have 
ourselves  seen — one,  the  warmer  interest  which  the  two  an- 
cient Universities  display  in  the  problems  that  engage  the 
attention  of  social  reformers  and  the  willingness  they  show 


900  VALEDICTORY  LECTURE 

to  aid  practically  in  their  solution ;  the  other  the  much  larger 
share  which  the  jurists  and  constitutional  students,  as  well  as 
the  economists,  of  America  and  the  British  colonies  have 
come  to  take  in  all  these  discussions.  As  our  books  are 
known  and  conned  beyond  the  ocean,  so  here  we  read  and 
prize  the  most  eminent  colonial  writers ;  and  we  find  in  an 
American  magazine,  the  Political  Science  Quarterly r,  an  ex- 
cellently conducted  organ,  such  as  Britain  has  not  yet  been 
able  to  provide,  for  the  discussion  in  a  scientific  spirit  of 
a  whole  class  of  constitutional  and  quasi-political  questions. 
As  the  isolation  of  England  from  Continental  Europe  is  less 
marked  than  it  was  half  a  century  ago,  so  still  more  conspicu- 
ously does  the  intellectual  and  moral  unity  of  the  English 
race  dispersed  throughout  the  world  stand  forth  to-day  in  a 
clearer  and  fuller  light. 

Let  us  turn  back  to  consider  what  still  remains  to  be  done 
to  give  this  law  school,  now  firmly  established  in  the  Univer- 
sity, its  due  hold  upon  the  legal  profession  and  its  due 
opportunities  of  promoting  the  progress  of  legal  science. 
None  of  us  can  be  blind  to  its  present  deficiencies.  We  have 
accomplished  less  than  we  hoped  in  raising  up  a  band  of 
young  lawyers  who  would  maintain,  even  in  the  midst  of 
London  practice,  an  interest  in  legal  history  and  juristic 
speculation.  The  number  of  persons  in  England  who  care 
for  either  subject  is  undeniably  small,  probably  smaller,  in 
proportion  to  the  size  and  influence  of  the  profession,  than  in 
any  other  civilized  country ;  and  it  increases  so  slowly  as  to 
seem  to  discredit  the  efforts  of  the  Universities.  Of  those 
who  have  undergone  our  law  examinations  comparatively  few 
have  either  enriched  these  subjects  by  their  writings,  or  have 
become  teachers  among  us,  or  have  taken  any  part  in  promot- 
ing legal  studies  elsewhere  '. 

How  is  this  deficiency,  which  ought  to  be  candidly  con- 
fessed, to  be  explained  ?  No  one  will  lay  it  at  the  door  of 
the  University  and  College  teachers,  whose  eminent  services 
have  been  already  referred  to.  To  me  it  seems  chiefly  due  to 

1  A  very  few  names  occur  to  me  of  persons  who  have  so  written  or  taught,  but 
I  abstain  from  mentioning  these  lest  I  should  omit  others. 


VALEDICTORY   LECTL'KK  901 

the  following  causes,  causes  which  I  mention  because  they 
may  all  be  removed.  One  of  them  is  the  short-sighted  and 
perhaps  somewhat  perverse  unwillingness  of  the  authorities 
who  control  admission  to  practice  in  both  branches  of  the 
profession  in  London,  to  give  full  recognition  to  our  Oxford 
Law  Examinations  and  Degree.  Were  the  tests  we  apply  so 
recognized  as  to  relieve  one  who  had  passed  them  from  all 
examinations  for  admission  either  to  the  bar  or  to  practice 
as  a  solicitor,  except  such  examinations  as  turn  upon  those 
purely  practical  matters  which  can  only  be  learnt  in  a  bar- 
rister's chambers  or  a  solicitor's  office,  a  strong  motive  would 
be  supplied  to  men  destined  for  the  profession  to  pursue 
their  legal  studies  and  take  their  legal  examinations  here, 
where  we  may  without  vanity  say  that  both  teaching  and  ex- 
amining are  understood  much  better  than  by  the  professional 
authorities  in  London.  Needless  to  add  that  the  University 
would  be  perfectly  ready  to  allow  those  authorities  every 
means  of  satisfying  themselves  of  the  character  of  her  exami- 
nations, as  the  General  Medical  Council  is  accustomed  to 
supervise  the  medical  examinations  of  the  various  medical 
bodies. 

A  second  cause  lies  with  Oxford  herself  in  her  own  exami- 
nations. Not  only  do  they  cramp  the  teacher,  practically 
debarring  him  from  some  topics;  but  they  are  so  arranged 
as  to  prevent  the  Law  School  from  receiving,  with  some  few 
exceptions,  men  of  the  first  intellectual  rank.  The  ablest 
and  best  prepared  of  the  students  naturally,  and  rightly,  enter 
the  classical  school,  and  find  themselves  obliged,  when  they 
have  obtained  their  degree  in  it  at  the  age  of  twenty-three, 
to  quit  the  University  for  the  work  of  life.  Do  not  suppose 
that  I  for  a  moment  desire  to  draw  such  men  away  from  the 
classical  school.  No  one  who  has  himself  passed  through 
the  training  of  that  school  will  doubt  its  superior  value  to 
even  the  best-arranged  Law  School,  as  a  part  of  the  education 
needed  to  make  a  good  scholar,  a  good  citizen,  and  a  good 
Christian.  What  we  want  is  such  a  revision  of  our  arrange- 
ments as  will  bring  men  to  the  University  somewhat  younger, 
and  will  enable  those  who  have  obtained  honours  in  the 


903  VALEDICTORY  LECTURE 

school  of  Literae  Humaniores,  and  intend  to  follow  the  legal 
profession,  to  pass  into  the  Law  School  when  they  have  taken 
their  B.A.  classical  honours,  and  devote  at  least  a  year 
(though  in  the  Law  Schools  of  America  two  years  at  least  are 
thought  needful)  to  professional  studies.  At  present  Oxford 
is  in  the  absurd  position  of  practically  excluding  from  the 
legal  instruction  which  the  University  provides  the  most 
promising  of  her  students,  the  very  men  who  are  best  fitted 
to  turn  it  to  account  in  their  subsequent  career.  They  spend 
at  school  a  year  which  they  ought  to  spend  at  college,  and 
they  spin  out  their  general  studies  so  long  that  they  are  un- 
able to  obtain  that  scientific  training  in  the  future  work  of 
their  life  which  the  University  has  been  at  such  pains  to  set 
before  them.  To  find  time  and  make  provision  in  our  cur- 
riculum for  professional  as  well  as  general  literary  studies 
was  one  of  the  chief  problems  which  the  Commissioners  of 
1878-81  ought  to  have  dealt  with.  Their  failure  throws  back 
upon  the  University  herself  the  duty  of  reform.  Other, 
though  less  material,  causes  may  be  found  in  the  undue  promi- 
nence which  examinations  have  been  suffered  to  take  in  the 
system,  and  in  the  very  unsatisfactory  relations  between  the 
teaching  provided  by  the  University  and  that  which  the  Col- 
leges supply,  relations  which  involve  much  overlapping  and 
a  serious  waste  of  teaching  power. 

I  need  not  pursue  this  topic  into  its  details.  Let  it  suffice 
to  remark  that  it  is  not  merely  for  the  sake  of  the  University 
that  one  would  desire  to  see  her  influence  upon  legal  studies 
extended.  Over  and  above  that  general  liberal  education 
which  it  is  her  main  business  to  give,  and  on  which  neither 
law  nor  any  other  special  study  must  be  suffered  to  infringe, 
it  is  her  duty  to  handle  professional  studies  in  a  wide  and 
philosophic  spirit,  to  raise  them  above  mere  gainful  arts  into 
the  domain  o*  science,  to  draw  to  herself  the  ablest  of  those 
who  are  entering  these  professions,  the  men  from  whom  each 
profession  receives  its  tone  and  temper.  You  all  know  how 
much  the  practical  sciences,  such  as  medicine,  chemistry, 
and  engineering,  have  gained  by  being  closely  associated  with 
the  pursuit  of  abstract  science.  No  less  true  is  it  that  men 


VALEDICTORY  LECTURE  903 

who  follow  these  occupations,  and  those  who  devote  them- 
selves to  the  bar  or  to  the  church,  profit  by  their  association 
with  literary  and  scientific  culture  and  its  central  home  here, 
feeling  themselves  members  of  a  great  learned  corporation, 
and  carrying  away  with  them  the  influence  of  the  ideals  it 
has  taught  them  to  cherish.  It  is  upon  the  clergy  that  this 
influence  has  hitherto  told  most;  nor  has  anything  done 
more  to  keep  the  clergy  of  the  Church  of  England  from 
becoming  a  caste  and  to  stimulate  their  activity  in  those 
fields  of  philosophic  and  historical  research  wherein  they 
have  won  so  much  distinction.  One  would  like  to  see 
the  University  lay  the  same  hold  on  the  other  great  profes- 
sions likewise. 

This,  however,  is  only  one  of  the  points  in  which  observers 
who  have  watched  and  studied  Oxford  from  without  as  well 
as  from  within  are  disposed  to  think  that  she  does  not  fully 
comprehend,  does  not  at  any  rate  fully  use,  her  unrivalled 
opportunities.  I  touch  upon  a  delicate  point.  Yet  as  Homer 
occasionally  invests  a  dying  warrior  with  prophetic  gifts,  one 
who  is  on  the  eve  of  departure  may  be  permitted  to  give  ex- 
pression to  some  of  the  aspirations  that  have  long  filled  his 
mind  when  he  has  thought  of  what  Oxford  might  achieve. 
She  seems  at  present  to  be  too  exclusively  occupied  not  only 
with  the  giving  of  a  general  liberal  education  (to  the  dispa- 
ragement of  professional  studies),  but  also  with  her  regular 
curriculum  and  those  who  follow  it,  to  the  neglect  of  those 
others,  now  comparatively  few,  but  capable  of  almost  in- 
definite increase,  who  desire  not  so  much  to  follow  a  regular 
course  or  secure  a  degree  as  to  obtain  special  training  in 
some  department  of  learning.  Have  we  not,  in  our  English 
love  of  competition  and  our  tendency  to  reduce  everything  to 
a  palpable  concrete  result,  allowed  the  examination  system  to 
grow  too  powerful,  till  it  has  become  the  master  instead  of  the 
servant  of  teaching  and  has  distracted  our  attention  from  the 
primary  duty  of  a  University  ?  It  is  not  any  revolutionary 
change  one  would  desire  to  see.  Such  changes  are  seldom 
either  easy  or  salutary;  while  as  regards  the  college  system, 
I  find  something  to  regret  in  those  inroads  upon  the  social 


904  VALEDICTORY  LECTURE 

life  and  corporate  character  of  the  colleges  for  which  the  last 
Commission  is  responsible.  The  reform  chiefly  needed  is 
a  reform  that  would  neither  injure  the  Colleges  nor  affect  the 
character  of  the  University  as  a  seat  of  general  liberal  educa- 
tion. Rather  let  us  return  to  the  older  conception  of  a  Uni- 
versity as  a  place  to  which  every  one  who  desired  instruction 
might  come,  knowing  that  as  Oxford  took  all  knowledge  for 
her  province  she  would  provide  him  with  whatever  instruction 
he  required.  The  abundance  and  the  cheapness  of  literature 
have  not  diminished,  perhaps  they  have  even  stimulated,  the 
demand  for  the  best  oral  teaching,  while  the  recent  establish- 
ment of  so  many  prosperous  colleges  in  the  great  towns,  the 
spread  of  University  Extension  lectures,  the  growth  of  Science 
schools,  have  immensely  increased  the  number  of  young  men 
who  would  come  hither  for  a  year  or  more  to  obtain  such 
teaching  were  they  sure  of  rinding  it.  What  is  the  present 
position  ?  There  are  professors,  many  of  whom,  eminent  as 
they  are,  cannot  secure  proper  classes,  because  the  under- 
graduates are  occupied,  under  the  guidance  of  the  college 
teachers,  in  preparing  for  degree  examinations.  For  the 
teaching  of  some  important  branches,  especially  in  natural 
and  in  economic  science,  no  adequate  staff  is  provided. 
England  has  been  outstripped  not  only  by  Germany  but  also 
by  the  United  States,  in  the  provision  of  what  the  Americans 
call  Post-Graduate  courses,  a  provision  which  even  the  pre- 
sent poverty  of  the  University  need  not  hinder  her  from  mak- 
ing, were  but  a  reasonable  system  of  fees  introduced  and 
revenues  husbanded  that  are  now  unprofitably  spent.  Both 
the  new  University  teachers  who  might  be  created  and  the 
present  professors  to  whom  the  existing  system  refuses  hearers 
would  be  only  too  happy  to  give  those  courses,  if  the  students 
could  be  found  and  the  requisite  arrangements  made.  The 
men  who  would  attend  the  courses  are  to  be  found,  some  of 
them  within,  many  more  without  the  University.  Those  with- 
out do  not  come  because  the  courses  have  not  been  offered  : 
and  to  provide  for  both  sets,  existing  arrangements  must  be 
remodelled,  for  these  contemplate  only  the  normal  under- 
graduate who  arrives  at  nineteen,  is  examined,  and  departs  at 


VALEDICTORY  LECTURE  0()5 

twenty-two  or  twenty-three,  and  take  no  account  of  those  who 
desire  neither  examinations  nor  degrees,  but  simply  to  per- 
fect themselves  in  some  department  of  science  or  learning. 
Were  such  courses  offered,  and  were  those  antiquated  arrange- 
ments altered,  you  might  soon  expect  a  sensible  afflux  of 
students,  not  from  England  only,  but  from  far  beyond  the 
bounds  of  England. 

Perhaps  those  who  dwell  in  Oxford  have  scarcely  yet  re- 
alized the  magnificent  position  this  University  holds,  as  not 
only  the  oldest  and  the  most  externally  beautiful  and  sumptu- 
ous place  of  education  in  the  English-speaking  world,  but  as 
a  spot  whose  name  and  fame  exert  a  wonderful  power  over 
the  imagination  of  the  English  peoples  beyond  the  sea,  many 
of  whose  youth  would  gladly  flock  hither  were  they  encour- 
aged to  do  so  by  arrangements  suited  to  their  needs.  For 
those  among  the  studious  youth  of  the  United  States  and 
Canada  who  desire  to  follow  out  their  special  studies,  I  can 
safely  say  from  what  I  have  seen  of  Canada  and  the  United 
States  that  did  Oxford  and  Cambridge  provide  what  the  Uni- 
versities of  Germany  provide,  and  were  it  as  easy  to  enter 
here  and  choose  the  subject  one  seeks  to  study  as  it  is  in  the 
Universities  of  Germany,  it  is  to  Oxford  and  Cambridge  rather 
than  to  Germany  that  most  of  them  would  resort :  nor  could 
the  value  be  overestimated  of  such  a  tie  as  their  member- 
ship here  would  create  between  the  ancient  mother  and  the 
scattered  children,  soon  to  be  stronger  than  their  mother,  but 
still  looking  to  her  as  the  hallowed  well-spring  of  their 
life. 

It  is  always  sad  to  part  from  work  with  which  the  best  years 
of  one's  life  have  been  largely  occupied  :  and  to  me  this  com- 
mon regret  is  deepened  by  the  associations,  full  of  antique 
dignity,  of  the  office  I  am  resigning  and  by  the  nature  of  the 
work  which  has  been  a  source  of  unfailing  pleasure.  And 
my  regret  at  parting  is  the  keener  because  I  part  from  the 
place  where  I  have  known  so  many  of  those  brilliant  figures 
whom  the  last  twenty  years  have  taken  from  us,  one  of  them 
happily  still  in  the  world,  though  long  since  lost  to  the  Uni- 
versity which  his  splendid  powers  adorned, — I  mean  Mr. 


906  VALEDICTORY  LECTURE 

Goldwin  Smith, — the  rest  now  living  only  in  our  recollec- 
tion. Vividly  there  come  back  to  me  as  I  stand  by  the  open 
gate,  the  kindly  wisdom  of  the  late  President  of  Corpus 
Christi ',  most  loveable  of  men;  the  luminous  and  fertile 
intellect  of  Sir  Henry  Maine  2 ;  the  masculine  force  and  high 
sense  of  public  duty  of  Thomas  Green 3 ;  the  penetration  and 
learning,  not  more  wide  than  exact,  of  Mark  Pattison 4 ;  the 
fine  taste  and  golden  lips  of  Henry  Liddon;  the  warm  heart 
and  vehement  discourse  and  noble  love  of  truth  of  Edward 
Freeman5;  the  fire,  the  courage,  the  eagerness,  the  zeal  in 
all  good  causes  of  one  whose  university  lectures  and  sermons 
were  so  powerful  a  stimulus  to  many  of  us  in  our  undergradu- 
ate days,  Arthur  Stanley 8.  These  men  had  some  sharp  con- 
tests in  their  lives,  but  they  are  all  alike  enshrined  in  our 
memory  as  men  of  whom  the  Oxford  of  those  days  may  well 
be  proud. 

Nor  must  a  word  of  grateful  farewell  be  omitted  to  those 
colleagues  in  the  Faculty  of  Law — among  whom  I  will  ven- 
ture to  reckon  the  Warden  of  All  Souls — whose  thoughts  and 
plans  it  has  been  a  constant  pleasure  to  share,  and  with  whom 
I  have  lived  these  many  years  in  a  friendship  which  no  cloud 
of  personal  disagreement,  nor  any  divergence  of  political 
opinions,  has  ever  for  a  moment  darkened.  With  the  regret 
of  parting  I  carry  away  the  delightful  recollection  of  those 
years,  and  a  sense  which  time  will  not  diminish  of  the  honour 
it  has  been  to  be  permitted  so  long  to  serve  this  great  Uni- 
versity, the  oldest  and  most  venerated  of  the  dwellings  of 
learning  in  Britain,  dear  to  us  not  only  because  our  brightest 
years  were  spent  among  her  towers  and  groves,  but  still  more 
because  in  her,  as  now  in  maturer  life  we  scan  a  sometimes 
troubled  horizon  to  watch  for  signs  of  storm,  we  see  an  insti- 
tution which  has  stood  unshaken  while  dynasties  have  fallen 
and  constitutions  have  been  changed,  and  which  still  and 

Dr.  John  Matthias  Wilson,  formerly  Professor  of  Moral  Philosophy. 
Formerly  Corpus  Professor  of  Jurisprudence. 
Formerly  Professor  of  Moral  Philosophy. 
Formerly  Rector  of  Lincoln  College. 
Formerly  Regius  Professor  of  Modern  History. 

Formerly  Regius  Professor  of  Ecclesiastical  History,  afterwards  Dean  of 
Westminster. 


VALEDICTORY  LECTURE  907 

always,  placed  above  the  shock  of  party  conflicts  and  renew- 
ing her  youth  in  fresh  activities  from  age  to  age,  embodies  in 
visible  and  stately  form  the  unbroken  continuity  of  the  intel- 
lectual life  of  our  country,  and  still  commands,  as  fully  as 
ever  in  the  past,  the  loving  devotion  of  her  children. 


INDEX 


Abolitionists,  in  America,  346. 

Aborigines,  in  Australia,  459. 

Achaean  League,  173. 

Adoption,  by  Indian  princes,  31  ; 
in  Indian  law,  106  ;  by  Ro- 
man emperors,  866. 

Adultery,  a  crime  in  -Indian 
Penal  Code,  108  ;  in  Roman 
law,  800. 

Aeschylus,  quoted,  142. 

Afghanistan,  17. 

Agricola,  13,  802. 

Alabama  case,  348. 

Alarich,  II,  laws  of,  760,  868. 

Algeria,  248. 

Alsace,  annexation  of,  258. 

Althing,  or  general  assembly, 
in  Iceland,  272-280,  291,  298. 

Althusius,  on  sovereignty,  533. 

Amendment  of  constitution,  130, 
174-184 ;  in  Australia,  437, 

438. 

America.     See  United  States. 

American  Commonwealth,  re- 
ferred to,  170,  179,  316,  496. 

Analytic  school  of  jurispru- 
dence, 612-617. 

Anarchism,  485,  605. 

Areopagus,  79. 

Argentina,  constitution  of,  180, 
214. 

Aristocracy  and  flexible  consti- 
tutions, 152-157. 


Aristotle,  132,  359,464,  567,  728, 
869. 

Armenia,  17. 

Army  of  Rome  and  India,  1 5,  37. 

Asiatic  peoples,  476,  477. 

Augustus,  483,  513,  518,  677, 
704,  80 1,  802. 

Austin  criticized,  536-543,  569, 
613-617. 

Australia :  constitution  of  the 
Commonwealth,  391-462; 
movement  for  federation,  394- 
403  ;  conditions  favouring  fe- 
deration, 403-408 ;  character 
of  federation,  408-410 ;  dis- 
tribution of  powers  between 
Commonwealth  and  States, 
410-412  ;  position  of  States 
under  constitution,  413-415  ; 
differences  from  United  States 
and  Canada,  416-418  ;  few 
restrictions  on  powers  of 
Commonwealth,  419-421  ;  the 
legislature,  421-424  ;  the  exe- 
cutive, 424 ;  the  judiciary, 
425-428  ;  dependence  of  exe- 
cutive upon  legislature,  428- 
431  ;  provisions  against  dead- 
locks, 431,  432  ;  relations  of 
the  two  Houses,  432-435  ; 
miscellaneous  provisions,  436, 
437  ;  amendment  of  constitu- 
tion, 437,  438  ;  relations  of 


910 


INDEX 


Commonwealth  to  British 
crown,  438-440  ;  comparison 
with  United  States  and  Can- 
ada, 440-443  ;  general  obser- 
vations, 443-447  ;  democratic 
character,  447-450  ;  political 
parties,  450-452  ;  future  po- 
litical issues,  452-456  ;  pos- 
sible entrance  of  new  States, 
457-460  ;  future  relations  to 
Britain,  460-462. 
Austro-Hungary,  constitution 
of,  172,  240,  393,  538,  539  ;  di- 
vorce in,  840. 

Bacon,  221,  542,  865. 
Baker,  Newton  D.,  836. 
Banns,  publication  of,  812. 
Basilica,  of  Leo,  748,  779. 
Belgium,  divorce  in,  840. 
Bentham,   criticized,   465,  499- 

502,  536-543,  569.  613-617. 
Bernier,  on  Mogul  empire,  9. 
Betrothal,  in  Roman  law,  792. 
Beyrut,  law  school  of,  684,  730. 
Bills,   in   House   of  Commons, 

734,  883. 

Bishops,  in  Iceland,  275. 
Bismarck,  483. 
Blackstone,  101,  526,  601,  615, 

684,  820,  823,  875. 
Blood  feuds,  270,  640. 
Bodin,     on     sovereignty,     532, 

533- 
Bologna,  law  school  of,  90,  646, 

656. 

Bosnia,  548. 
Boss   system  in  America,  349, 

487. 

Bowen,  Lord,  630,  685. 
Bracton,  68 1,  740. 
Brand,  President,  387. 


Breach  of  promise,   action  for, 

793- 

Brehon  law,  95,  621. 
Bulgaria,   constitution    of,    178, 

179,  548. 

Cabinet  government,  in  Eng- 
.land,  151  ;  under  the  Austra- 
lian constitution,  429-431. 

Cairns,  Lord,  630,  685. 

Cairo,  university  of,  646-656. 

Calhoun,  330,  550. 

Canada,  constitution,  168,  172  ; 
compared  with  Australian, 

393,  399-  407,  4U-4I4,  415. 
416X4.18,  440-443  ;  law  of  di- 
vorce, 834. 

Canning,  Lord,  31. 

Canon  Law,  growth  of,  89,  90, 
668  ;  regulation  of  marriage 
and  divorce  by,  809,  811-814, 
825-827. 

Cape  Colony,  360. 

Capital  of  United  States,  339  ; 
of  Australian  Commonwealth, 
436. 

Caracalla,  edict  of,  40,  85,  585, 
758. 

Case  law,  compared  with  prae- 
torian edict,  698-708. 

Caste,  57. 

Catullus,  23,  44,  792. 

Caucus,  the,  151. 

Celibacy,  discouragement  of,  at 
Rome,  798,  806  ;  of  clergy,  809. 

Centripetal  and  centrifugal 
forces,  their  action  on  politi- 
cal constitutions,  216-262  ;  in- 
terest and  sympathy,  222-224  ; 
race  and  religion,  224-226  ; 
how  constitutions  may  utilize 
centripetal  forces,  229-237 ; 


INDEX 


911 


and  how  modify  centrifugal 
forces,  237-249  ;  illustrations 
from  United  States,  250,  251  ; 
probable  results  in  the  future, 
254-262  ;  effect  of  conquest 
and  family  succession,  256- 
258. 

Chancellor,  the  Lord,  as  builder 
of  equity,  599-601  ;  as  law- 
maker, 689,  690,  695-697. 

Character,  of  conquering  races, 
49-51. 

Chartism,  149,  201. 

Chastisement  of  wife  by  hus- 
band, 819. 

Christianity,  unifying  influence 
of,  2  ;  persecution  of,  44  ;  in 
India,  57  ;  introduction  into 
Iceland,  294,  295  ;  as  affecting 
growth  of  law,  665-668,  757  ; 
influence  on  Roman  law  of 
divorce,  803-805. 

Church,  identified  with  State, 
663,  664. 

Cicero,  against  Verres,  22,  76, 
80,  692  ;  on  the  Law  of  Na- 
ture, 574-577,  608  ;  on  the 
Twelve  Tables,  752,  877  ;  di- 
vorced his  wife,  Soi. 

Citizenship  under  Roman  em- 
pire, 40,  76. 

Clarendon,      Constitutions     of, 

763. 

Claudian,  quoted,  63. 
Claudius,  Emperor,  807. 
Climate,  effect  of,  on  Roman  and 

Indian  empires,  53- 
Clive,  8,  ii,  24,  50. 
Codicilli,  704. 
Codification,  of  Roman  law,  89  ; 

of  French  law,  91,  325,  777  ; 

of  German  law,  92,  778,  864  ; 


of  Indian  law,  103-113;  of 
Icelandic  law,  286-288. 

Coemptio,  Roman  marriage  by, 
788-790. 

Coke,  Lord,  629,  680. 

Collectivism,  261. 

Colonies,  of  England,  4. 

Colour  of  Race,  effect  of,  in  Ro- 
man and  Indian  empires,  53- 
56,  245-248. 

Com  it  la,  711-716. 

Commands,  laws  as,  280,  465, 
499-502,  625. 

Committee  stage,  in  English 
legislation,  736. 

Commonwealth.    See  Australia. 

Comparative  method  of  jurispru- 
dence, 604,  619-622. 

Concubinage,  808. 

Confarreatio,  Roman  marriage 
by,  788-790. 

Congress,  as  a  legislative  body, 
733-735- 

Conquest,  formation  of  empire 
by,  7-13;  extension  of  Roman 
law  by,  75,  527  ;  effect  of,  as 
a  centripetal  force,  256-259. 

Consistorium,  725. 

Consolidation  :  of  law  in  India, 
in  ;  of  law  in  America,  735  ; 
of  English  law,  738,  883. 

Constantinople,  law  school  of, 
684,  730. 

Constituta,  of  Roman  emperors, 
84,  722. 

Constitutions  :  of  Rome  and 
England,  124-128  ;  proposed 
new  classification,  128-136  ; 
origin  of  flexible,  136-139 ; 
strength  and  weakness  of  flexi- 
ble, 139-152;  aristocracies, 
152-157 ;  influence  on  the 


912 


INDEX 


mind  of  a  nation,  158-164  ; 
capacity  for  territorial  expan- 
sion, 164-167  ;  origin  of  rigid, 
167-174;  enactment  and 
amendment  of  rigid,  174-184  ; 
definiteness  of  rigid,  184-187  ; 
stability  of  rigid,  187-193  ;  in- 
terpretation of  rigid,  193-198  ; 
democracies,  198-204  ;  future 
of  flexible  and  rigid,  205-210  ; 
possibility  of  new  types,  210- 
213  ;  classes  of  governments, 
214,  215. 

Contract  code,  in  India,  no,  ill. 

Contractualists,     the,    463-466, 

599- 

Convention,  for  amendment  of 
constitution,  179,  181, 183,398. 

Cousins,  intermarriage  of,  807. 

Criminal  law,  78,  741. 

Croatia,  227. 

Cromwell,  Oliver,  7,  170,  512, 
519. 

Crown  colonies,  4. 

Custom  :  source  of  Icelandic 
law,  280-283  ;  of  law  gener- 
ally, 640,  672,  673,  687,  741. 

Customs  duties,  in  Australian 
constitution,  436. 

Dacoity,  21. 

Dante,  317  ;    quoted,  529,   594, 

722. 

Dartmouth  college  case,  414. 
Darwin,  307,  588. 
Deadlocks,    provisions   against, 

in     Australian     constitution, 

431-435- 
Deceased  wife's  sister,  marriage 

with,  under  Roman  law,  807. 
Decemviral   legislation,    at 

Rome,  747. 


Declaration    of    Independence, 

49i.  579.  599- 

Deference,  as  ground  of  political 
obedience,  469,  470,  474. 

Delegations,  in  Austro-Hun- 
gary,  539. 

Democracy  and  rigid  constitu- 
tions, 198-204. 

Democratic  character  of  Austra- 
lian constitution,  447-450. 

Demosthenes,  quoted,  568,  594. 

Denmark,  acquisition  of  Iceland 
by,  300;  constitution  of,  513, 
515  ;  divorce  in,  839. 

Dicey,  Prof.  E.,  134,  686,  889. 

Dictator,  145,  508. 

Diet,  of  empire,  272,  298,  315. 

Diocletian,  729,  748,  756. 

Divorce  :  in  Ireland,  772,  783, 
830 ;  in  Scotland,  783,  827- 
829  ;  in  Roman  law,  799-802  ; 
influence  of  Christianity  on 
Roman  law,  803-805  ;  under 
canon  law,  825-827  ;  later  law 
in  England  and  Scotland,  827- 
830 ;  laws  in  United  States, 
830-833  ;  American  statistics, 
834-839  ;  in  modern  Euro- 
pean countries,  839-842  ;  con- 
nexion with  conjugal  infidel- 
ity, 848-851  ;  does  English 
law  need  amendment  ?  852- 
856. 

Donatio  propter  nuptias,  796, 
804,  824. 

Dos,  in  Roman  law,  795, 803, 824. 

Dower,  814,  820,  824. 

Drayton,  quoted,  588. 

Droit  Naturel,  604,  608-612. 

Duck,  Arthur,  596,  862. 

Dutch  law,  in  South  Africa,  73, 
93.  367. 


INDEX 


013 


Dutch  republics,  in  South  Af- 
rica, 359-39°- 

Ecclesia,  of  Greek  cities,  156, 
611. 

Ecclesiastical  courts,  815,  816, 
827. 

Edict  of  the  praetor,  78,  692, 
693,  698-701,  706. 

Edictum  perpetuum,  703. 

Education,  in  Roman  and  In- 
dian empires,  47,  61. 

Edward  I,  legislation  of,  763. 

Egypt,  political  position  of,  29, 
59,  87,  226,  239,  513,  548. 

El  Azhar,  mosque  and  univer- 
sity, 646-656. 

Elegance,  in  Roman  law,  629, 
879. 

Emancipation  of  women,  799, 
846-848,  857. 

Empedocles,  quoted,  567. 

Emperor  :  as  sovereign  in  mid- 
dle ages,  529  ;  as  source  of 
law  at  Rome,  720-730. 

England  :  Roman  empire  com- 
pared with  British  empire  in 
India,  1-71  ;  extension  of 
English  law  throughout  the 
world,  72-123  ;  the  constitu- 
tion, 124-126,  130,  132-135, 
141,  143,  146,  147,  148,  155, 
163,  165,  175,  195,  206-210, 
230  ;  sovereignty  of  Parlia- 
ment, 510,  513,  519,  538,  553  ; 
conception  of  equity  as  af- 
fected by  law  of  nature,  599- 
602;  analytic  school  of  juris- 
prudence, 612-617  ;  want  of 
elegance  in  English  law,  630  ; 
legal  writers  as  sources  of 
law,  680-688  ;  judges  as 
58 


sources  of  law,  688-690,  695- 
698  ;  case  law,  698-706  ;  legis- 
lation by  Parliament,  731- 
739  •  five  eP°cns  °f  legal 
change,  749 ;  outline  of  prog- 
ress of  legal  changes,  762- 
769  ;  comparison  with  Roman 
law,  769-776  ;  private  law  least 
affected,  778-781  ;  law  of  mar- 
riage, 814-818  ;  property  re- 
lations of  consorts,  818-820  ; 
gradual  amendment  of  law, 
817-820,  854,  882  ;  law  of  di- 
vorce, 826-830  ;  does  law  of 
divorce  need  amendment  ? 
852-856. 

English  language  in  India,  62. 

Ennius,  quoted,  615. 

Epicurus,  568. 

Equality  theory  of  marriage, 
823-825,  856. 

Equity,  in  Roman  law,  581,  582  ; 
in  English  law,  599,  600  ;  in 
Indian  law,  601  ;  as  amending 
law  of  wife's  property,  821. 

Erastianism,  639. 

Eurasians,  in  India,  55,  58,  116. 

Euripides,  quoted,  784. 

European  influence  over  rest  of 
world,  i. 

Evidence  Code,  in  India,  109. 

Executive,  the  :  at  Rome,  162, 
163  ;  in  Australian  constitu- 
tion, 424,  429. 

Executive  Council,  the  :  in  the 
Orange  Free  State,  366,  382, 
384,  387  ;  in  the  South  Afri- 
can Republic,  372,  382,  384. 

Family,  its  influence  on  Roman 
law,  770  ;  as  religious  organ- 
ism, 640. 


914 


INDEX 


Family  succession  :  effect  of,  as 

a  centripetal  force,  256-258. 
Fathers  of  the  Church,  666,  869. 
Fathers  of  the   Republic,   306, 

3I9- 

Fear,  as  ground  of  political  obe- 
dience, 463-467,  472-474,  478, 

Federal  courts  :  in  the  United 
States,  ;  34,  350,  351  ;  in  Aus- 
tralia, 424-427. 

Federalist,  The,  302,  307-313. 

Federation  :  types  of,  392,  393, 
408-410  ;  sovereignty  in,  549- 
552  ;  of  British  empire,  207- 
210,  462. 

Fetwa,  664. 

Finance  :  in  Roman  and  Indian 
empires,  31-35  ;  in  Austra- 
lian constitution,  399,  436. 

Finland,  autonomy  of,  243. 

Flag,  the,  in  the  United  States, 

251,  349- 

Flexible  and  rigid  constitutions, 
124-213  ;  is  the  Transvaal  con- 
stitution flexible  ?  375,  376. 

Folk  Mot,  138,  267,  296,  362,  711. 

Formulae,  741. 

France  :  constitution  of  the  re- 
public, 130,  172  ;  legal  his- 
tory, 776-778  ;  divorce  in,  839, 
840. 

Franks,  the,  480. 

Free  State.  See  Orange  Free 
State. 

Free  Trade,  483. 

French  law,  codification  of,  91. 

French  Republic,  constitution 
of,  130,  181. 

Frontiers,  of  Roman  and  Indian 
empires,  12-16. 

Fundamental  statutes,  175. 


Fusion  :  of  races  in  Roman  em- 
pire, 52,  62  ;  of  Roman  and 
provincial  law,  82,  83. 

Future  life,  belief  in,  847. 

Fylki,  in  Norway,  296. 

Gaius,  581,  583,  590,  680,  684, 
710,  717,  759,  789,  791.  894. 

Gardiner,  S.  R.,  170. 

Gens,  meaning  of,  572. 

Gentili,  Alberico,  602,  890. 

German  empire,  constitution  of, 
167,  174,  182,  393  ;  divorce  in, 

839- 

German  law,  codification  of,  92  ; 
history  of,  776-778. 

Ghosts,  legal  ejectment  of,  in 
Iceland,  290,  291. 

Gierke,  Prof.  Otto,  533,  595. 

Gilman,  President,  320. 

Glanvill,  680,  740. 

Goethe,  quoted,  596. 

GoSi,  or  priest-chieftain,  in  Ice- 
land, 267-271,  274,  275,  279, 
289,  295-297. 

Gortyn,  laws  of,  76. 

Grace,  opposed  to  law,  638. 

Graduation,  at  El  Azhar,  651. 

Grammar,  in  Musulman  univer- 
sity, 651. 

Gratian,  594. 

Greece,  constitution  of,  177. 

Greek  Civilization,  spread  of,  in 
ancient  world,  2. 

Greek  law,  76,  87,  584,  632. 

Greenland,  colonized  from  Ice- 
land, 280. 

Gronclwet,  the  :  of  the  South  Af- 
rican Republic,  369-373  ;  was 
it  a  rigid  constitution  ?  375- 
380. 

Grotius,  602,  603. 


INDEX 


915 


Group,  defined,  218 ;  parlia- 
mentary, 452. 

Growth,  phenomena  of,  558. 
Grueber,  Dr.  E.,  889. 
Gunnlaug's  Saga,  292,  293. 

Habit,  as  governing  action,  473, 
500,  517. 

Haiti,  constitution  of,  179. 

Hamilton,  Alexander,  chief 
writer  in  The  Federalist,  302, 
306,  307,  309-319-  357,  550- 

Hand  power,  in  Roman  mar- 
riage law,  787-791. 

Hannen,  Lord,  852. 

Harrison,  Frederic,  on  Austin, 

554,  555- 

Harvard  University,  655. 

Hastings,  Warren,  24,  65,  384. 

Halts,  promulgated  by  the  Sul- 
tan, 674. 

Hawaiian  Islands,  2,  246,  348. 

Hegel,  552,  611. 

Henry  II,  influence  on  English 
law,  762-764. 

Heraclitus,  566. 

Herodotus,  563. 

High  Court  :  in  India,  38  ;  in 
Australia,  424-427. 

Hindu  Law,  administered  in 
India,  97-101. 

Hindustani  language,  60. 

Historical  school  of  jurispru- 
dence, 617-619. 

Hobbes,  criticized,  533-535,  551, 
598. 

Holland,  constitution  of,  178, 
181  ;  divorce  in,  839,  840. 

Holland,  Dr.,  608. 

Holmes,  Chief  Justice,  624, 
684. 

Home  Rule,  for  Ireland,  176. 


Homer,  137,  268,  501,  566,  640, 

9°3- 

Homicide,  penalty  for,  in  Ice- 
land, 270,  289. 

Horace,  55  ;  quoted,  755. 

House  of  Representatives,  the  : 
its  position  in  the  United 
States,  309,  311,  314,316,  335, 
352  ;  in  the  Australian  Com- 
monwealth, 421-423,  429-435, 
448. 

Hungary,  constitution  of,  132. 

Husband  and  wife,  identity  of, 
in  English  law,  818,  819.  See 
also  Marriage. 

Hustings,  267. 

Iceland,  263-300  :  discovery  and 
settlement,  265-266  ;  begin- 
nings of  a  polity,  266  ;  the 
priest-chieftain,  267-269 ;  first 
political  constitution,  269- 
271  ;  organization  and  pow- 
ers of  the  Althing,  271-275  ; 
the  speaker  of  the  law,  275  ; 
Thingvellir,  276-278  ;  charac- 
ter of  the  republic,  279,  280  ; 
character  and  growth  of  the 
law,  281-286  ;  sources  of  our 
knowledge  of  the  law,  287, 
288  ;  illustrations  of  the  law, 
288-293;  introduction  of 
Christianity,  294,  295  ;  reflec- 
tions on  early  history,  296- 
298  ;  fall  of  the  republic,  299  ; 
union  with  Denmark,  300 ; 
independence,  240,  483. 

Ihering,  Rudolf  von,  619,  898. 

Ilbert,  Sir  C.  P.,  24,  56,  73,  101, 
602,  731,  735. 

Imperinm,  of  praetor,  694. 

Inaugural  lecture,  860-886. 


916 


INDEX 


India :  British  conquest,  4-6  ; 
military  character  of  empire, 
II,  12;  natural  frontiers,  14, 
15;  roads  and  railways,  17, 
18  ;  internal  peace,  20,  21  ; 
character  of  administration, 
23-28  ;  protected  states,  31  ; 
fiscal  system,  31-34 ;  native 
army,  38  ;  native  civil  service, 
38  ;  private  civil  rights,  41  ; 
legislative  councils,  42  ;  reli- 
gious usages,  47  ;  education, 
48  ;  influence  of  climate,  53  ; 
influence  of  colour,  54-56  ;  in- 
fluence of  religion,  56,  57  ; 
influence  of  language  and 
literature,  60-62  ;  no  fusion 
of  races,  63  ;  little  influence 
on  England,  64-66  ;  probable 
future  of  British  power,  69- 
71  ;  legal  systems  found  by 
the  English,  96-99 ;  English 
continued  existing  systems  of 
law,  99-103,  573  ;  codification, 
103-105  ;  merits  and  working 
of  the  codes,  108-112  ;  proba- 
ble future  'of  legal  develop- 
ment, 118-121  ;  as  governed 
by  Englishmen,  475. 

Indian  tribes,  in  United  States, 
316,  341,  475- 

Individualism,  492,  850. 

Indolence,  as  ground  of  political 
obedience,  467-469,  473,  474. 

International  law  :  sovereignty 
in,  546-549  ;  natural  law  in, 
602-604. 

Interpretation  of  rigid  constitu- 
tions, 193-198. 

Inter-state  commission,  425. 

Ireland,  law  of,  94 ;  political 
forces  in,  224,  241  ;  little  influ- 


ence on  English  law,  771  ;  no 
divorce  in,  830. 

Irish,  in  Iceland,  264,  266. 

Irrigation,  in  Australia,  396,400, 
436,  456. 

Isidore  of  Seville,  593. 

Islam,  law  of,  72,  74  ;  adminis- 
tered in  India,  96-102  ;  char- 
acteristics of,  646,  658-665. 

Italy,  constitution  of,  133,  167, 
171,  176. 

Index,  in  Roman  law,  678. 

lus,  contrasted  with  lex,  128, 
709. 

lus  gentium,  in  Roman  law,  82, 
569-575,  583-586,  753- 

lus  honorarium,  574. 

lus  non  scrip  turn,  126. 

lus  respondendi,  in  Roman  law, 
678-680. 

Jackson,  President,  330,  339,344. 

Japan,  constitution  of,  167,  214, 
520  ;  divorce  in,  834. 

Jay,  Chief  Justice,  302,  306. 

Jefferson,  305,  306,  307,  312,  544. 

Jewish  law,  644,  665  ;  of  di- 
vorce, 828. 

Joint  stock  companies,  law  of, 
743,  768,  878. 

Jointure,  in  lieu  of  dower,  820. 

Judges,  the,  as  makers  of  law, 
687-698. 

Judicature  Act,  864,  873,  899. 

Judiciary,  the  :  its  position  in  the 
United  States,  334,  350,  351  ; 
in  the  Orange  Free  State,  366  ; 
in  the  South  African  Repub- 
lic, 372,  378,  386  ;  in  the  Aus- 
tralian Commonwealth,  425- 
428  ;  as  makers  of  law,  687- 
698. 


INDEX 


917 


Julian,  jurist,  185,  526,634,  671, 

703- 

Julius  Caesar,  150. 

Jurists,  as  makers  of  law,  591, 
592,  676-681  ;  difference  be- 
tween the  action  of  Roman 
and  English,  681-687,  880. 

Justinian,  his  codification  of  Ro- 
man law,  759,  760  ;  change  in 
law  of  divorce,  804. 

Kadi,  Muhammadan  judge,  652, 
663,  674. 

Kant,  552,  6ll. 

Kent,  Chancellor,  684. 

Khalifs,  the,  514,  664. 

King's  Proctor,  829. 

Kissing,  as  test  of  prohibited  de- 
grees, 807. 

Koran,  the,  511,  649,  652,  656, 
659,  66 1,  674. 

Kotze-,  J.  G.,  369. 

Kovalevsky,  819. 

Kruger,  President,  389. 

Labeo,  578,  680,  683. 

Labour   Party,    in   the    United 

States,  349  ;  in  Australia,  452. 
Laissez-faire,  485,  492. 
Land,  its  influence  on  English 

law,  771. 
Land  Revenue,  in  Roman  and 

Indian  empires,  31-33. 
Landesgemeinde,  137,  362. 
Langdell,  Prof.  C.  C.,  95,  894. 
Language,  effect  of,  in  Roman 

and  Indian  empires,  59-62. 
Laos  States,  in  Siam,  233. 
Law   Reports,    compared    with 

Roman  treatises,  685-687. 
Law  Speaker,  in  Iceland,  275, 

276,  278,  280,  283. 


Lawyers,  power  of,  in  America, 

339- 
Legal  development  at  Rome  and 

in  England,  745-781  :  five 
chief  epochs  of  legal  change 
at  Rome,  747-749  I  ^ve  epochs 
of  legal  change  in  England, 
749-75 1  ;  outline  of  legal 
changes  at  Rome,  751-761  ; 
outline  of  legal  changes  in 
England,  762-769  ;  differences 
between  development  of  Ro- 
man and  English  law,  769- 
776  ;  observations  on  France 
and  Germany,  776-778  ;  pri- 
vate law  least  affected,  778- 
78i. 

Legal  profession,  as  a  maker  of 
law,  687-698. 

Legislation.  See  Methods  of 
law-making. 

Legislative  Councils,  in  India, 
42. 

Legitimation,  of  children  born 
before  marriage,  809. 

Leibnitz,  on  Mogul  empire,  9. 

Leo,  Emperor-Philosopher  :  Ba- 
silica of,  748,  779  >  abolishes 
divorce  by  consent,  805,  809. 

Lex,  meaning  of,  709,  710,  714, 

7I5-- 

Libel,  punishment  for,  in  Ice- 
land, 289. 

Liberty,  love  of,  482,  483. 

Liberty  of  the  press,  in  South 
African  republics,  367,  370. 

Limitation  of  sovereignty,  521, 
522. 

Literature,  effect  of,  in  Roman 
and  Indian  empires,  59-62. 

Lithuania,  Roman  law  in,  93. 

Littleton,  681. 


918 


INDEX 


Livy,  quoted,  572,  676,  752. 

Liwan,  or  hall  of  prayer,  650. 

Locke,  598. 

Logberg,  or  Hill  of  Laws,  in  Ice- 
land, 278. 

LogsogumaSr,  or  Law  Speaker, 
in  Iceland,  275,  276,  278,  280, 
283. 

Lords,  House  of,  731-734,  737. 

Louis  Napoleon,  180,  483, 
516. 

Lyall,  Sir  A.  C,  31,  46. 

Macaulay,  codification  of  Indian 
law  by,  103,  109,  705. 

Madison,  President,  302,  306, 
307,  314,  315,  550. 

Magistrates,  as  makers  of  law, 
687-698. 

Maine,  Sir  H.  S.,  142,  554,  580, 
584,  643,  878,  889,  906. 

Maitland,  Prof.,  731,  814,  815, 
818,  820,  826. 

Manipur,  21. 

Mansfield,  Lord,  573,  615,  630, 
685,  693,  696,  862,  863. 

Mantle  children,  810. 

Manus,  in  Roman  marriage, 
787-790. 

Maoris,  the,  in  New  Zealand, 
248,  459. 

Marcian,  563,  581,  594. 

Marquardt,  27. 

Marriage  and  divorce  under  Ro- 
man and  English  law,  782- 
859  :  diversity  of  law  of  mar- 
riage in  different  countries, 
782-784 ;  character  of  mar- 
riage in  early  law,  784-786  ; 
early  form  of  Roman  marriage 
law,  786-789  ;  change  to  later 
system,  789-791  ;  personal  re- 


lations of  consorts,  791-794; 
pecuniary  relations  of  con- 
sorts, 794-798  ;  Roman  con- 
ception of  marriage,  798,  799  ; 
divorce  in  Roman  law,  799- 
802;  influence  of  Christianity 
on  divorce,  803-805  ;  encour- 
agement of  marriage,  806  ;  dis- 
couragement of  second  mar- 
riage, 806;  prohibited  degrees, 
806-808  ;  natural  marriage, 
808  ;  concubinage,  808-810  ; 
marriage  under  canon  law, 
811-814;  English  law  of  mar- 
riage, 814-818;  property  re- 
lations of  consorts,  818-820  ; 
gradual  amendment  of  Eng- 
lish matrimonial  law,  821-825 ; 
divorce  under  canon  law,  825- 
827  ;  later  law  of  divorce  in 
England  and  Scotland,  827- 
830  ;  divorce  laws  of  United 
States,  830-833  ;  statistics  of 
divorce  in  America,  834  ;  di- 
vorce in  modern  European 
countries,  839-842  ;  compari- 
son of  change  at  Rome  with 
modern  world,  842-845  ;  ten- 
dencies affecting  permanence 
of  marriage  tie,  846-851  ;  in- 
fluence of  church  and  law,  851 ; 
does  English  law  need  amend- 
ment ?  852-856  ;  changes  in 
theory  and  sentiment  regard- 
ing marriage,  856-859. 

Martial,  quoted,  802. 

Martyrs,  the  Christian,  482. 

Mastery  theory  of  marriage,  824, 
825. 

Maurer,  Konrad,  writer  on  Ice- 
land, 269. 

Mellish,  Lord  Justice,  630. 


INDEX 


919 


et  torus,  divorce  from, 
827,  828. 

Merriam,  C.  E.,  jun.,  555. 

Merwing  kings,  480. 

Metaphysical  basis  of  law,  604, 
609-612. 

Methods  of  law-making  in  Rome 
and  in  England,  669-744  :  law- 
making  authorities  in  general, 
670-675  ;  jurists  as  makers  of 
law,  676-681  ;  difference  be- 
tween action  of  Roman  and 
English  jurists,  681-687  ;  mag- 
istrates and  judges  as  mak- 
ers of  law,  687-698  ;  prae- 
torian edicts  compared  with 
English  case  law,  698-708  ;  di- 
rect legislation  at  Rome  (a) 
the  popular  assembly,  708- 
716  ;  (b}  the  senate,  716-720  ; 
(c]  the  emperor,  720-730  ;  di- 
rect legislation  in  England — 
Parliament,  731-739 ;  reflec- 
tions suggested  by  the  history 
of  legislation,  739-744. 

Methods  of  legal  science,  607- 
637  :  metaphysical  or  a  priori, 
609-612  ;  analytic,  612-617  ; 
historical,  617-619 ;  compara- 
tive, 619-622  ;  value  of  each, 
622-624  ;  utility  for  legal 
study,  624-628. 

Mexico,  constitution  of,  168,  173. 

Military  Character  of  Roman 
and  Indian  empires,  n,  12. 

Milton,  quoted,  492,  766  ;  on  di- 
vorce, 828. 

Mitteis,  Dr.  L.,  85,  87,  585. 

Modestinus,  679,  759,  798,  867. 

Mogul  emperors,  5,  9,  476,  514. 

Mommsen,  793,  898. 

Money  bills,  135,  148,  432. 


Monroe  Doctrine,  the,  346,  401. 

Montenegro,  an  autocracy,  132, 
212,  214,  215. 

Montesquieu,  124,  318. 

Mormons,  785. 

Mosaic  law,  645,  665. 

Mosque  of  El  Azhar,  646-656. 

Mufti,  652,  674. 

Muhammadan  law,  adminis- 
tered in  India,  97-102  ;  char- 
acteristics of,  646,  658-665. 

Muirhead,  585,  678. 

Municipalities,  in  India,  28. 

Musulman  law,  administered  in 
India,  97-102  ;  characteristics 
of,  646,  658-665. 

Napoleon,  codes  of,  91,  92. 

Natal,  361,  362. 

National  sentiment,  as  a  politi- 
cal force,  238-242,  490,  491. 

Nations,  in  academical  usage, 
653,  7". 

Natural  marriage,  808,  812. 

Nature,  Law  of,  556-606  :  origin 
of  idea  of  Nature  as  a  ruling 
force,  556-562  ;  origin  of  con- 
ception of  Natural  Law,  562- 
569  ;  Roman  ius  gentium  or 
Law  of  the  Nations,  570-575  ; 
connexion  of  law  of  Nature 
with  Law  of  the  Nations,  575- 
582;  relation  of  Law  of  Nature 
to  general  customary  law,  583- 
586  ;  meaning  attached  by  Ro- 
man jurists  to  Nature,  586- 
593  ;  Law  of  Nature  in  mid- 
dle ages,  593-597  ;  in  modern 
times,  597-606. 

Naturrecht,  604,  607-612. 

Negotiable  instruments,  law  of, 
742,  767  ;  in  Germany,  778. 


INDEX 


Negro  question  in  United  States, 
247,  305,  313.  328,  329,  341, 
348,  356- 

Nettleship,  Prof.  H.,  572. 

Newman,  W.  L.,  583. 

New  Testament,  law  in,  528, 
638,  644,  666,  826,  867. 

New  Zealand,  outside  Austra- 
lian Commonwealth,  458, 

459- 
Non-regulation     provinces,     in 

India,  30. 
Norman  feudalism,  influence  on 

British  constitution,  163. 
Norway,    constitution    of,    177  ; 

relations  with   Sweden,  240 ; 

settlement   of    Iceland    from, 

264-267  ;  subjection  of  Iceland 

to,  299,  300  ;  divorce  in,  839, 

840. 

Novels  of  Justinian,  730. 
Nuncomar,  execution  of,  102. 

Obedience,  political,  463-502  : 
theories  regarding-,  463-467  ; 
grounds  of,  467-484 ;  future 
of,  484-498  ;  theory  of,  applied 
to  jurisprudence,  499-502. 

Obiter  dicta,  686,  698. 

Ohio,  divorce  in,  836. 

Old  Age  Pensions,  specifically 
mentioned  in  Australian  con- 
stitution, 400,  412,  448. 

Olympian  games,  as  unifying 
influence,  237. 

Oppressed  nationalities,  491. 

Orange  Free  State,  359-390  ; 
early  history,  361-364 ;  con- 
stitution of  the  republic,  364- 
368  ;  observations  on  its  work- 
ing, 380-387  ;  recent  history, 
387,  389.  39°- 


Orders  in  Council,  147,  688. 
Organs  of  law-making,  670-675. 
Orthodox  Church,  in  Russia,  236. 
Outlawry,  642. 

Oxford,  646,  653,  655,  656,  905- 
907. 

Papinian,  634,  685,  693,  715,  725, 

759- 

Parke,  Baron,  286. 

Parliament,  as  source  of  law  in 
England,  130,  73T~739  ;  sov- 
eignty  of,  130,  510,  538  ;  mar- 
riages dissolved  by,  828. 

Parsis,  in  Parliament,  42. 

Partnership  theory  of  marriage, 
824. 

Party  organization,  in  the  United 
States,  310,  313,329,331,  345, 
349,  351,  451,  452  ;  in  Aus- 
tralia, 450-452. 

Patagonia,  211. 

Patria  Potestas,  86,  628,  643, 
866. 

Paul,  jurist,  759,  792. 

Penal  Code,  in  India,  104,  109, 
705,  742. 

Pension  system,  in  United 
States,  315,  353. 

People,  the,  as  a  source  of  law, 
670-672  ;  at  Rome,  708-716. 

Peregrini,  aliens,  in  Roman  law, 
76,  79,  114,  570,  753. 

Persia,  10,  549,  659,  660. 

Philippine  Islands,  occupation 
of,  by  United  States,  2,  28,  66, 

348,  49  '• 
Philosophy  of  law,  604,  608-612, 

624-627. 

Pilgrim  s  Progress,  The,  639. 
Pitso,  of  Kafirs,  137,  267,  711, 
Plato,  321,  331,  463,  567. 


INDEX 


921 


Plebiscite,  amendment  of  con- 
stitution by,  131,  180. 

Pliny,  the  elder,  588. 

Plutarch,  807. 

Poland,  partition  of,  240 ;  Ro- 
man law  in,  93,  94. 

rolitical  Science  Quarterly, 
The,  900. 

Pollock,  Sir  F.,  553,  555,  569, 
601,  731,  810,  814,  815,  818, 
820,  826. 

Polyandry,  in  ancient  times,  784. 

Polybius,  7,  124. 

Polygamy,  among  Eastern  peo- 
ples, 119,  784,  855. 

Pontifices,  oversight  over  mar- 
riage, 814. 

Pope,  the,  as  sovereign,  529  ; 
jurisdiction  over  marriage, 
814,  826. 

Popular  assembly,  as  source  of 
law  at  Rome,  130,  708-716. 

Population,  growth  of,  493. 

Portuguese  empire,  46,  248. 

Possession,  in  Roman  and  Eng- 
lish law,  624,  626,  866. 

Post-graduate  studies,  904. 

Praetorian  edict  compared  with 
case  law,  698-708. 

Praetorian  prefect,  725. 

Praetors,  the,  574,  619,  631,  691- 
695,  698-701,  706-708,  753. 

Pre-contract,  impediment  to 
marriage,  816,  827. 

President,  the  :  his  position  in 
the  constitution  of  the  United 
States,  308,  312,  316,334,  344, 
350,  508  ;  in  the  Orange  Free 
State,  366,  368,  382,  384,  385, 
387  ;  in  the  South  African  Re- 
public, 371,372,  382,384,  385, 
389- 


Press,  influence  of  the,  156,  335, 

349-  493- 

Priests,  in  Iceland,  267. 

Primary  assemblies,  137,  267, 
362,  711. 

Privy  Council,  appeal  to,  96, 100, 
106,  147,  234,  768  ;  under  Aus- 
tralian constitution,  426,  427. 

Procedure  Codes,  in  India,  104, 
1 08. 

Procedure,  law  made  through, 

697. 

Procopius,  50. 
Profession  of  law,  at  Rome  and 

in  England,  682,  683. 
Prohibited  degrees  of  marriage, 

806-808,  815. 
Protected  states,  in  Roman  and 

Indian    empires,    5,    30,    31, 

547- 
Protective  tariff,  in  the  United 

States,  329,  343  ;  in  Australia, 

450. 
Protectorate,    the,   in   England, 

139,  150,  170,  512,  519. 
Protestantism,  474,  488. 
Province,  meaning  of  the  word, 

30  ;  in  Canada,  411. 
Provincial    government,    under 

Roman  empire,  22,  23,  25,  27, 

77,  78. 

Prussia,  constitution  of,  171,  483. 
Public  schools,  479. 
Puerto  Rico,  acquisition  of,  by 

United  States,  197,  348. 
Puritanism    of    New   England, 

305,  329- 

Quaestiones  perpetuae,  741. 
Queensland,  224. 
Quorum,  for  amendment  of  con- 
stitution, 178. 


932 


INDEX 


Rabbis,  the,  645. 

Racial  feeling,  as  political  force, 
224,  225. 

Railways,  in  India,  12,  18 ;  in 
United  States,  347  ;  in  Aus- 
tralian constitution,  436, 
458. 

Rajputs,  54. 

Ratio  decidendi,  698. 

Reason,  as  ground  of  political 
obedience,  463-466,  472-474  ; 
of  the  Stoics,  568. 

Referendum,  the,  130,  180,  349, 
397,  438,  521. 

Reformation,  influence  on  law, 
764  ;  on  marriage  law,  813, 
826,  839. 

Regular  marriage,  812. 

Religion,  relations  of  law  to, 
638-668 :  apparent  antago- 
nism, 638,  639  ;  close  connex- 
ion in  early  times,  639-643  ; 
differences  between  different 
peoples,  643  ;  Jews  in  Roman 
times,  644;  primitive  Christi- 
anity, 645  ;  illustrations  from 
El  Azhar,  646-655  ;  mediae- 
val universities,  655-657  ;  ar- 
rested development  of  Musul- 
man  universities,  658-665  ;  dif- 
ferences in  Christianity,  665- 
668. 

Religious  feeling :  in  ancient 
and  modern  world,  44-47  ;  ef- 
fect of,  in  Roman  and  Indian 
empires,  56-59  ;  no  obstacle 
to  spread  of  Roman  law,  87  ; 
as  political  force,  225,  226, 
234-236,  239,  340. 

Reports,  in  English  law,  685- 
687. 

Representative  Government :  no 


place  in  the  ancient  world,  27  ; 
or  in  India,  42. 

Rescripts  of  Roman  emperors, 
722. 

Resolutions  (besluite)  of  Trans- 
vaal Volksraad,  377-380. 

Responsa,  in  Roman  law,  678, 
682. 

Restitution  of  conjugal  rights, 
823. 

Rhodesia,  Southern,  605. 

Rights  of  Man,  243,  599. 

Rigid  and  flexible  constitutions, 
124-213. 

Ritchie,  D.  G.,  555,  569. 

Rivers,  importance  of,  in  Aus- 
tralia, 400,  436. 

Riwaks,  at  El  Azhar,  653,  654. 

Road  builders,  Roman  and  Eng- 
lish, 17-20. 

Romano-Germanic  empire,  90- 
91,  166,  226,  239,  254,  443,  510, 

529.  530,  598- 

Rome :  Roman  empire  com- 
pared with  Indian  empire,  5- 
65  ;  diffusion  of  Roman  law  by 
conquest,  75-84 ;  establish- 
ment of  one  law  for  the  empire, 
84-89 ;  extension  of  Roman 
law  after  fall  of  western  em- 
pire, 89-94  ;  Romarulaw  com- 
pared with  Indian  law,  114- 
117  ;  present  position  of  Ro- 
man and  English  law,  121- 
123  ;  constitution  of,  124,  125, 
133-135,  140,  144-146,  148, 
154,  161,  162  ;  political  reli- 
gion, 235,  481  ;  few  national 
revolts,  239  ;  no  race  preju- 
dices, 246,  248 ;  empire  es- 
tablished by  conquest,  258; 
succession  of  emperors,  518; 


INDEX 


Roman  views  of  sovereignty, 
524-528  ;  Roman  conception 
of  ius  gentium,  570-586 ; 
meaning  of  Nature  in  Roman 
jurists,  586-593  ;  philosophical 
treatment  of  Roman  law,  628- 
637  ;  jurists  as  makers  of  law, 
676-687  ;  magistrates  as  mak- 
ers of  law,  687-708  ;  legisla- 
tion by  popular  assembly,  708- 
716 ;  legislation  by  senate, 
716-720 ;  legislation  by  em- 
peror, 720-730  ;  chief  epochs 
of  legal  change,  747-749  I  out> 
line  of  legal  changes,  751-761  ; 
legal  development  compared 
with  England,  769-776  ;  early 
form  of  marriage  law,  786-789; 
change  from  earlier  to  later 
system,  789-791  ;  later  mar- 
riage law,  791. 

Romilly,  103,  864. 

Rousseau,    criticized,    464-466, 

599- 

Rules,  by  delegated  authority, 
688. 

Russia  :  extension  of  dominion 
by,  2,  7,  48,  49,  66  ;  adoption 
of  Roman  law  by,  73,  93  ; 
fundamental  laws  of  the  em- 
pire, 137  ;  influence  of  Ortho- 
dox Church,  236 ;  sovereignty 
in,  506,  674  ;  marital  right  of 
chastisement,  819;  divorce, 
840. 

Sacrament  of  marriage,  808,  812, 

826. 

Sagas,  286,  287,  295. 
Sale  of  wife  by  husband,  787, 

819. 
Sallust,  572. 


Salt  tax,  in  Roman  and  Indian 
empires,  33,  34. 

Sand  River  Convention,  362. 

Sassanid  kings  of  Persia,  10,  17, 
44,  239,  785. 

Savigny,  112,  633,879,  884,  898. 

Scaevola,  Q.  Mucius,  286,  576, 
683. 

Scandinavia,  extension  of  Ro- 
man law  to,  94. 

Scientific  frontiers,  15-17. 

Scotland  :  has  adopted  Roman 
law,  73,  91  ;  national  life,  243  ; 
little  influence  on  English  law, 
772  ;  marriage  law,  817  ;  law 
of  divorce,  827,  829,  841. 

Scribes,  the,  644. 

Second  marriage,  discouraged 
by  early  Christianity,  806. 

Second  Volksraad,  in  Transvaal, 

374- 

Self-help,  492. 

Senate,  the  :  its  position  in  Rome, 
154,  155,  525  ;  in  the  United 
States,  308,  314,  336,  352,  421, 
433.  435  ;  in  Australian  Com- 
monwealth, 421-423,  430-435, 
448  ;  as  source  of  law  at  Rome, 
716-720. 

Senatus  consult  a  t  719-721. 

Seneca,  quoted,  802. 

Separate  property,  of  wife,  821- 
823. 

Separation  of  husband  and  wife, 
828. 

Septennial  Act,  538. 

Servia,  constitution  of,  178,  179. 

Settlement,  prenuptial,  821. 

Sheik  ul  Islam,  the,  511,  648, 664, 
724. 

Siam,  16,  233. 

Sidgwick,  H.,  555. 


924 


INDEX 


Sigismund,  laws  of,  760. 

Signore,  of  Italian  city,  145, 
502. 

Sikkim,  21. 

Slavery  :  in  Iceland,  288  ;  in  the 
United  States,  189,  305,  313, 
328,  329,  342,  348,  356;  for- 
bidden by  Transvaal  constitu- 
tion, 370  ;  in  Roman  law,  583, 
628. 

Slavonic  law,  93. 

Smith,  Goldwin,  170,  906. 

Smith,  John  William,  630,  686. 

Smith,  Sir  Thomas,  553. 

Social  contract,  464-466,  599. 

Social  Democrats,  604. 

Socrates,  566. 

Sonderbund,    war    of  the,  239, 

399- 

Sophocles,  quoted,  213,  565. 
South  Africa,  constitution  of  the 

two  Dutch  Republics,  133, 168, 

359-39°.  548. 

South  American  republics,  168, 
179,  211,  214,  502,  513,  518, 

519- 

South  Carolina,  no  divorce,  831. 

Sovereignty,  503-555  :  confu- 
sions regarding  the  term,  503- 
5°5  ;  legal  or  de  iure  sove- 
reignty, 505-511  ;  practical  or 
de  facto  sovereignty,  511-515  ; 
relations  of  legal  to  practical 
sovereignty,  515-523  ;  Roman 
and  mediaeval  views,  523-530  ; 
modern  theories,  531-541  ; 
questions  liable  to  be  con- 
founded, 541-546  ;  in  interna- 
tional relations,  546-549  ;  in  a 
federation,  549-552  ;  recent 
discussions,  554,  555. 

Spain,  constitution  of,  176,  511. 


Spanish  Empire,  in  America,  5, 

7,  34,  46,  48,  248,  356. 
Spinoza,  598. 
Spoils  system,  in  United  States, 

313.  317,  349- 
Sponsalia,  792. 
St.  Augustine,  594. 
St.  Chrysostom,  quoted,  594. 
St.  German,  Christopher,  600. 
St.  Leonards,  Lord,  629,  680. 
St.    Paul,  quoted,  58,  528,  594, 

638. 

St.  Peter,  quoted,  528. 
St.  Thomas  Aquinas,  529,  594. 
Statistics  of  divorce  in  America, 

834-839- 

Statute  de  donis,  764. 

Statute  of  Frauds,  766. 

Statute  of  Uses,  96,  704,  765. 

Statute  of  Wills,  765. 

Statute  quia  emptores,  764,  770. 

Stephen,  Sir  J.  F.,  codification 
of  Indian  law  by,  no. 

Stephen,  Leslie,  615. 

Stoics,  the,  568. 

Story,  Justice,  684. 

Stowell,  Lord,  685,  812,  817. 

Stubbs,  Bishop,  498. 

Suetonius,  44,  718,  785,  801. 

Sulla,  139. 

Sultan  of  Turkey,  511,  514. 

Suzerainty  of  England  over 
Transvaal,  388. 

Swiss  Confederation,  constitu- 
tion of,  130, 195,  252,  393,  418, 
420,  438  ;  divorce  in,  839, 
840. 

Sympathy,  as  ground  of  political 
obedience,  470. 

Tacitus,  quoted,  264,  268,  784, 
807. 


INDEX 


925 


Tacking  of  bills,  prohibited  in 

Australian  constitution,  433. 
Teaching  of  law  :  at  Rome,  682; 

at  Oxford,  860-907. 
Ten  Commandments,  501. 
Territorial  expansion,  capacity 

of  constitutions  for,  164-167. 
Teutonic  law,  94,  288,  621,  776, 

814. 

Theal,  Dr.,  361,363. 
Theodorich,  edictum  of,  760. 
Theodosius  II,  code  of,  88,  586, 

758,  759- 

Theology,  identified  with  law, 
640-646,  660. 

Thing,  or  assembly,  in  Iceland, 
267-271,  711. 

Thingvellir,  in  Iceland,  271,  276- 
278. 

Thucydides,  512. 

Thuggi,  21. 

Thule,  264. 

Tocqueville,  Alexis  de  :  his  De- 
mocracy in  America,  319-358  ; 
his  insufficient  knowledge  of 
England,  323  ;  his  preoccupa- 
tion with  France,  324  ;  his  de- 
scription of  the  United  States, 
332-347  ;  examination  of  his 
views,  347-355- 

Torts,  law  of,  in  India,  98,  101, 
105. 

Trade,  as  a  consolidating  influ- 
ence, 222,  346,  400. 

Trade  Unions,  in  America,  487, 
492. 

Trajan,  9,  25,  721. 

Transvaal,  the,  168,  359-390 ; 
constitution  of  the  South  Af- 
rican Republic,  369-374  ;  ob- 
servations, 374, 375 ;  is  it  a  rigid 
or  a  flexible  constitution  ?  375- 


380 ;  observations  on  its  work- 
ing, 380-388  ;  recent  history, 
388-390. 

Transylvania,  246. 

Trebatius,  704. 

Trent,  Council  of,  812. 

Tribonian,  526,  684,  759-761. 

Tribute,  in  Roman,  but  not  in 
Indian  empire,  34,  35. 

Trusts,  commercial,  203,  487. 

Trusts,  in  law,  106,  704. 

Tunis,  548. 

Twelve  Tables,  the,  154,  284, 
714,  747,  751-753,  755- 

Tyrant,  in  Greece,  502,  537,  544. 

Ukase,  722. 

Ulfljot,  founder  of  the  Althing  in 
Iceland,  271,  287. 

Ulpian,  quoted,  135,  581,  583, 
588,  590,  634,  692,  759,  782. 

Ulster  custom,  673. 

United  States  :  law  of,  95  ;  con- 
stitution of,  126,  168,  172,  177, 
179,  180,  181,  183,  187,  188, 
189,  192,  195,  199,  202,  232, 
241,  244,  247,  250-252  ;  consti- 
tution as  seen  in  the  past,  301- 
358  ;  constitution  as  seen  in 

.  The  Federalist,  302-307  ;  pre- 
dictions of  the  opponents  of 
the  constitution,  307-309 ; 
views  of  the  supporters  of  the 
constitution,  309-313  ;  criti- 
cism of  both  opinions,  314-319; 
the  Democracy  in  America 
of  Tocqueville,  319-328  ;  his 
views  and  impressions,  328- 
347 ;  examination  of  them, 
347-355  ;  subsequent  history, 
357  ;  constitution  compared 
with  South  African  republics, 


926 


INDEX 


368,  384  ;  compared  with  Aus- 
tralian Commonwealth,  398, 
406,  411,  413,  414,  417,  419, 
421-423,  428,  431,  433,  440- 
443,  445  ;  boss  system,  trade 
unions,  trusts,  47  ;  growth  of 
population  and  wealth,  493, 
494  ;  divided  sovereignty,  506, 
508,  510,  511,  540,  549-552  ; 
legislation  by  Congress,  732- 
735  ;  marriage  law,  783  ;  vary- 
ing laws  of  divorce,  830-833  ; 
statistics  of  divorce,  834-839. 

Universities,  Musulman  and 
mediaeval,  654-658  ;  in  India, 
48,  61,  62  ;  in  Germany,  236, 
237,  646  ;  in  America,  348. 

Urbs  became  orbis,  114,  749. 

Utility,  568,  613,  614. 

Vacarius,  at  Oxford,  861,  889. 

Valedictory  lecture,  887-907. 

Vangerow,  Dr.  K.  A.  von,  633, 
870,  898. 

Verres,  22,  24,  80. 

Veto  :  none  in  South  African 
republics,  368,  381  ;  under 
Australian  constitution,  440, 
449  '•>  °f  crown  m  parliament, 
526,  715. 

Vigfusson,  GuSbrand,  278. 

Vikingry,  270. 

Village  Councils,  in  India,  27, 
28. 

Villiers,  Melius  de,  364. 

Vinerian  professorship  at  Ox- 
ford, 684,  863,  875,  888. 

Vinculum  matrimonii,  divorce 
from,  826,  828. 


Virgil,  60  ;  quoted,  265,  527,  584. 

Voigt,  Moriz,  569. 

Volksraad,  the  :  of  the  original 
Dutch  emigrants,  362  ;  of  the 
Orange  Free  State,  364,  366  ; 
of  the  South  African  Repub- 
lic, 370-372  ;  the  Second 
Volksraad,  374 ;  predominance 
of  the  Volksraad  in  the  con- 
stitution, 381,  385. 

Wages,  rise  of,  494. 

Wakf  (=  endowments),   at  El 

Azhar,  97,  654. 
Wapentake,  in  Iceland,  291. 
Washington  city,  343. 
Washington,  George,  303,   306, 

450. 
West  Indies,  under  English  law, 

73- 
Whig  party,  in   United  States, 

346,  351. 

Wife.     See  Marriage. 
Will,  as  a   political  force,  474, 

475- 

Willcox,  W.  F.,  834,  838. 
Wills,  in    Musulman  law,  648  ; 

Hindu  law  of,  106. 
Women's  suffrage,  in  Australia, 

423,  448,  454,  455. 
Wordsworth,  quoted,  562. 
Written    constitutions,    126, 

127. 

Xenophon,  quoted,  567. 
Yelverton,  60 1. 
Zollverein,  223,  232,  233. 


THE  END 


THIS    BOOK    IS    DUE    ON    THE    LAST    DATE 
STAMPED  BELOW 


E  OF  25  CENTS 


AN  INITIAL 


WILL  BE  ASSESSED  FOR  FAILURE  TO  RETURN  THIS  BOOK 
ON  THE  DATE  DUE.  THE  PENALTY  WILL^INCREASE  TO 
50  CENTS  ON  TH*"lFOURTH  DAY  AND  TO  $hQ^ON  THE 


SEVENTH  D 


VERDUE. 


A  n\/ 


D 

)UEJAN? 


iQTD 


Book  Slip-20w-7,'56(C769s4)45y 


161.315 


Biyce,   J.E. 

Studies  in  history 
&  jurisprudence. 


Call  Number: 


JAl|l 

B7 


CTX\4/ 


164315 


